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THE Constitutional beginnings 



NORTH Carolina 



JOHN SPENCER BASSETT 





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THE CONSTITUTIONAL BEGINNINGS OF 
NORTH CAROLINA 

(1663-1729) 



JOHNS HOPKINS UNIVERSITY STUDIES 

IN 

Historical and Political Science 

HERBERT B. ADAMS, Editor 



History is past Politics and Politics present History.— Freeman 



TWELFTH SERIES 
III 



THE CONSTITUTIONAL BEGINNINGS OF 
NORTH CAROLINA 

(1663-1729) 

By John Spencer Bassett 

Fellow in ffistori/. J. If. C. : Professor Elect of Higiory in Trinity College, 
Sorth Carolina 



A DISSERTATION PRESENTED TO THE BOARD OF UNIVERSITY STUDIES OF 

THE JOHNS HOPKINS UNIVERSITY FOR THE DEGREE OF 

DOCTOR OF PHILOSOPHY. 



baltimore 
The Johns Hopkins Press 

PUBLISHED MONTHLY 

March, 1894 



0. H. HILL LIBRARY 
N. CX STATE UWIVERirrV 



."OPTBIGHT, 1894, BT THE JoHKB HOPKUTS PBKSB. 



THK rKllCDK.KWAU) CO., PBQrTZKS, 
SAXTTMOEK. 



PREFATORY NOTE. 

In presenting this work to the pubHc I desire to acknow- 
ledge my indebtedness for assistance — either in the shape of 
criticisms or in the form of books and other material which 
were lent me — from Dr. K. P. Battle, Professor of History 
in the University of North Carolina; Chief Justice James E. 
Shepherd, of the Supreme Court of North Carolina; Asso- 
ciate Justice A. C. Aver)', of the Supreme Court of North 
Carolina and Professor of Law in Trinity College (N. C); 
and Hon. John Manning, Professor of Law in the University 
of North Carolina. These gentlemen, by their efforts, and 
many others by their kind interest, have materially aided 
me. 

J. S. B. 

February 20, i8g4. 



1571t>2 



CONTENTS. 



Chapter I. — Introduction: General features of the Proprietary 
Period ; Development of Civil Liberty ; Economic and Social 
Conditions, p. 9. 

Chapter II. — The Source of the Gonstitution of North Carolina. 
Section /.—The King's Idea of a Colony. Section II. — The Pala- 
tinate Franchise. Section III. — The County Palatine in America, 
p. 17. 

Chapter III. — The Proprietors and the Constitution. Section I. — The 
Legal Status of the Lords Proprietors. Section II. — The Proprie- 
tors' Theory of Government — The Fundamental Constitutions, 
p. 30. 

Chapter Vf.— Th^ Analysis of the Constitution. Section I. — The 
Lords Proprietors. Section II. — The Governor. Section III. — The 
Council. Section IV. — The Assembly. Section V. — The Judicial 
System. Section VI. — Finances. Section VII. — Miscellaneous 
Officers, p. 44. 



SOURCES OF INFORMATION. 

" The Colouial Records of North Carolina," edited by Col. W. L. 
Saunders; Vols. I., II. and III. This has been our chief source. 
In its volumes we have found letters of instruction, reports of offi- 
cers, laws, court records, and various other documents. The nature 
of the work in hand has rendered it necessary to depend more on 
these materials than on the several narrative histories of the State, 
although valuable general knowledge has been gotten from the 
latter. 

"Laws of North Carolina": printed by James Davis. 1752. 

•'History of North Carolina": F. L. Hawks; 2 vols. (1584-1729). 
Volume II. of this work deals with the Proprietary period and is 
without doubt the best treatment of the subject that has appeared. 

"Political Annals of the United Colonies": George Chalmers; 
1780. This work was based on original authorities, but contains 
little for us that cannot be found in better shape in the " Colonial 
Eecords." Its chapter on Carolina is reprinted in Carroll's "His- 
torical Collection of South Carolina." Vol. II. 

On Durham County : 
Surtees : " History of the County Palatine of Durham." 
Publications of the Surtees Society, particularly Vols. 32. 82. 
and 84. 

We have also consulted in a general way : 
Williamson : '• History of North Carolina." 
Martin : " History of North Carolina." 
Winsor : " Narrative and Critical History," Vol. V.. in which is 

reprinted Rivers' sketch of the early history of Carolina. 
Doyle : " English Colonies in America." 
John Lawson : •" Exact Description of the Natural History of 

North Carolina."' 1709. 
Brickell: "Natural History of North Carolina," 1737. 
Weeks: " The Religious Development of North Carolina." J. H. 

Univ. Hist. Studies. Tenth Series. 
Howard : " Local Constitutional History of the U. S." 
MacMahon : " History of Maryland." 

Other works have been used for specific purposes. These are 
indicated in footnotes, which, it is hoped, will be found as ample as 
is desirable. 



Introduction. 



CHAPTER I. 
Introduction. 

The Proprietary government of North Carolina began in 
1663, with the royal grant, and ceased in 1729, with the sale 
of the entire property to the Crown. The eight noblemen 
who, by the royal favor, were constituted its " true and abso- 
lute lords and proprietors," proceeded in 1665 to oudine the 
plan by which they proposed to administer the civil affairs 
of their property/ Their design was to create for the time 
certain distinct governments, each directly dependent on the 
Proprietors. These they designated *' counties.'' Three 
counties were actually organized. They were: (i) Albemarle, 
a region north of Albemarle Sound, and containing 1600 
square miles; (2) Clarendon, the district to the south of the 
mouth of the Cape Fear; and (3) Craven, the territory imme- 
diately south of Cape Romaine.' Over each county was 
placed a Governor, with the necessar}^ administrative asso- 
ciates. 

With Craven and Clarendon counties we have here noth- 
ing to do; for the one lay wholly without the region that later 
became North CaroUna, and the other, though within that 
territory, was soon abandoned, tliat its inhabitants might 
unite with those of Craven count\' to build up the more 
prosperous colony of South Carolina. 

Our inquiry lies particularly with Albemarle count\'. This 
government, though at first the smallest of the three, gradu- 
ally extended its authority over the neighboring districts, 
until at the end of the seventeenth century it became kno\\Ti 
as North Carolina, and embraced all that part of the province 
that lies north and east of Cape Fear. The original county 
was divided into precincts, and, along with other counties 



Ck)l. Records of North Carolina, I., 79. *76id., I., 93. 



10 Constitutional Beginnings of North Carolina. 

that were subsequently created on the same plan, continued 
to exist till 1738, when the larger division was abolished, and 
in its place the old precinct, which was now known as a 
county, became the regular local administrative and judicial 
unit.' 

In 1 691 the Proprietors seem to have thought that their 
progress in planting colonies was sufficient to warrant a 
union of the several settlements into one government. They 
accordingly appointed for the whole colony one Governor, 
known as the Governor of Carolina, who, with one Council 
and one Assembly, was to direct the government of all Caro- 
lina.* 

This was, doubtless, a previously arranged plan for gradu- 
ally bringing into use the Fundamental Constitutions. It 
certainly took a step toward the general provisions of that 
instrument. The only practical result was the division of the 
province into North and South Carolina- Whatever irregu- 
larly defined counties might have existed before this, they 
were now integrated, not into one, but into two, govern- 
ments.' It was the large tract of unsettled country lying be- 
tween Charleston and Albemarle Sound that caused this divi- 
sion. On second thought, the Proprietors agreed that if 
Albemarle found it inconvenient to send delegates to the 
Assembly at Charleston, the Governor might establish in the 
northern county a separate government, with such powers as 
he saw fit to confer.* Thus a Deputy Governor, appointed 
by, and reporting to, the Governor of Carolina became the 
head of the government in Albemarle. 

This state of affairs continued from 1691 to 1710. There 
being no direct communication between the North Carolina 



' Williamson : Hist, of N. C, I., 163 ; also Laws of 1752, pp. 86, 90. 

«Col. Recs. of N. C, I., 373-380. 

'The Proprietors claimed that there were four counties: Albe- 
marle, Craven, Berkeley, and Colleton. Only Albemarle was in 
North Carolina, and in South Carolina only Craven had been defin- 
itely organized. See Col. Recs. of N. C, I., 377. 

* See Col. Recs., I., 380-1. Chalmers says, rather disparagingly, 
thatNorthCarolina"'refused to join in legislation with their southern 
neighbors." Chalmers : Hist, of the Revolt, I., 398. 



Introduction. 11 

authorities and the Proprietors, we have but scant records 
for the period. One result is observable, however. The 
people, left largely to themselves, gained a greater influence 
in the government. The popular influence began to over- 
master the Proprietary interest, and the colony became 
for a short time peaceful and happy. 

In 1710 the Proprietors resolved that "a Governor be 
made for North Carolina independent of the Governor of 
South Carolina."* This action is in danger of being spoken 
of as the separation of North and South Carolina; but there 
was never any organic union between the two colonies. 
When the Governor of Carolina was instructed to appoint a 
Deputy Governor for North Carolina he was directed to 
appoint a similar officer for the southern colony. These two 
were therefore entirely co-ordinate in authority. From the 
fact that the Governor of Carolina usually appointed his 
deputy for North Carolina and lived in more populous 
and more cultured South Carolina, which he often ruled in 
person, the idea has sometimes appeared that the Governor 
of the northern colony was dependent, not on the Governor 
of Carolina, but on the Governor of South Carolina. 

From 1 71 2, the time of the settling of affairs under tlie 
revived independent Governor, the colony remained pros- 
perous and peaceful. The Lords relaxed their design of 
making a constitution for the people and allowed them prac- 
tically to devise their own laws. That faction of the inhabi- 
tants which favored the Proprietors managed to hold the 
Assembly, and by a wise use of their power brought about 



' There is something unexplained about this event. Our quotation 
is taken from the minutes of a meeting of the Proprietors (Col. 
Recs., I., 750). This occurred Dec. 7, 1710. Eight days later the 
Governor of Virginia addresses Hyde as Governor (lb., I., 750). 
Hyde must have been recognized in the colony before he was 
appointed by the Lords (cf. Hawks, II., 517). Hyde seems to have 
depended on a commission from Tynte. the Governor of Carolina, 
who dying at this time, the new Governor was obliged to have a 
commission from the Proprietors, which was issued, Jan. 24, 1712 
(Col. Recs., I., 841). Hawks adopts the latter date as the beginning 
of Hyde's term (Hist, of N. C, II., 493). 



12 Constitutional Beginnings of Xorth Carolina. 

some good laws and, until just before the close of the Pro- 
prietan- period, much good feeling. 

With regard to the development of civil libert>-, the results 
of our investigation fall into three stages. These are: (i) the 
period of infancy, (2) the period of physical stniggle, and 
(3) the period of constitutional reform. 

The period of infancy is only important as gi\'ing a start- 
ing-point It was co-existent with the system of government 
organized under the Concessions of 1665,^ and was super- 
seded in 1670 by those constitutions which were tempor- 
arily to take the place of the Fimdamental Constitutions. In 
the minds of the Proprietors the Concessions themselves were 
doubtless intended to be temporary-, but there is no evidence 
that any such intentions were communicated to the settlers. 
The leading characteristic of the period is the tutelar nature 
of government The Proprietan.- influence was at its height 
and from this state of freedom, or non-freedom, the gro'vsth 
of civil liberiv' began.' 

The second period, however, is of more importance. All 
States in which libert\- has proceeded by any regular growth 
from authorit)' to equality have begun the process with a 
period of physical struggle. Xorth Carolina was no excep- 
tion to this rule. From 1670 to 1712 her people, according 
to Colonel Saunders, drove from office six of their fourteen 
Governors.* During this time there were two actual rebel- 
lions, and the inhabitants were kept in a constant state of 
unrest Governor Spotswood, of \''irginia, remarked, rather 
spitefully, that the people were so used to turning out their 
Governors that they thought they had a right to do so.* 

The first of these troubles, the " Culpeper Rebellion," 
came soon after the arrival of the Fundamental Constitutions, 



'CoL Eec5.. I.. 79. 

- The Proprietor?" government was definitely established in Albe- 
marle in 1664. about three months before the Concessions. Before 
this there had been a few people there, mostly Virginians, who held 
their lands from the Virginia government or from the Indians. 

^Col. Recs.. II.. p. X. ^Ibid.. II.. p. x. 



Introduction. 13 

and it has, therefore, been customar)- to say that the troubles 
of the period aros^ from an attempt to enforce that system. 
This appears not to be true, and for two reasons: (i) The 
Proprietors did not attempt to enforce tlie Constitutions as 
such in North CaroHna; and (2) whenever there is trouble 
there is always assigned a sufficient cause — and a cause 
which has nothing to do with the Constitutions. Not one 
fact, but several facts, caused the various struggles of the 
people against their rulers. The tliree most marked griev- 
ances were the attempt to enforce the navigation laws, tlie 
scheme to introduce the established church, and dishonest 
or inefficient Governors. To tliis should, perhaps, be added 
a certain amount of demagoguen.-, an element which is al- 
ways plentiful where an oppressed people are ignorant and 
for a considerable part of their time unemployed. 

The excesses of this period brought the colony the reputa- 
tion of being lawless. This imputation is more easily jus- 
tifid than denied. The people had real grievances. Unused 
to the formalities of law, and, under the Proprietors' system 
of government, having but little opportunity for a legal 
redress of g^evances, they struck for relief by what seemed 
to them the nearest and surest method — by physical force. 
While it cannot be denied that their resistance largely 
influenced the liberal settlement of the government in the 
Revisal of 171 5, still it must be admitted that relief would 
have come sooner and with less discredit to the fame of the 
province had the difference been fought out in a constitu- 
tional manner. 

The third period may be said to have begun with the settle- 
ment of internal affairs after the " Carey Rebellion *' — say 
about the end of 171 1. It ended, so far as this work is con- 
cerned, in 1729. It was a period of constitutional struggle. 
The marked improvement on the former period was brought 
about by a union of two causes. First, the people had come 
to see the futility of employing force. They obser\'ed that 
such tactics had but put their opponents into office and had 
weakened the colony against Indians. Secondly, the Pro- 



14 Constitutional Beginnings of North Carolina. 

prietors on their part came to adopt a more liberal policy to- 
wards tlie settlers. They allowed the code of 171 5 to take 
the place of the shadowy and indefinite system of 1670 which 
they had vaguely embodied in their instructions to successive 
Governors. Thus they themselves were largely removed 
from the administration of affairs, and their Governors, espe- 
cially Eden, seem to have been inclined to get along with the 
people as easily as possible. 

As a consequence, all struggle ceased for more than a de- 
cade, and when it did re-appear amid the confusion of the 
closing days of the Proprietar}- regime, it was methodical 
and constitutional. The Assembly's calm but firm manner of 
asserting its rights at this period suggests all tlie dignit}' of 
the English Parliamentar}- battles of the seventeenth century. 
The struggle thus begim was carried over to the period of 
the royal prov-ince, and was not finally allayed till North 
Carolina became a State. 

There is one fact in the early history of North Carolina 
that makes it unique among all the Southern colonies. That 
fact lies in the economic conditions of the early settlement. 
Two forces tended to keep it a poor colony, thus giving a 
turn to its later character. In the first place, it was the policy 
of the Proprietors to grant the land in small holdings, six 
hundred and forty acres being usually the maximum quan- 
tity'. Only a few persons, the hereditarv^ nobility for the 
most part, — and in Nortli Carolina tliese were rare indeed, — 
could acquire larger continuous tracts.^ By this means land- 



' As early as 1669 the Assembly passed a law which for five years 
restricted land-holdings to 660 acres. This law did not extend to 
Proprietors. Landgraves and Caciques. It was made to prevent dis- 
persion of the inhabitants over a very large area. (See Col. Recs.. 
I.. 186.) The amount a man might then take up without purchase 
was 60 acres for himself and 50 or 60 acres for each person he 
brought in with him. Later it was 50 acres, without distinction, 
for each person that came in. One musttherefore be a considerable 
man to secure at any time more than 1000 aci'es {lb.. I., 182). In 
1709. if not earlier, the Proprietors declared that no more than 640 
acres should be sold to one man without their written permission 
(lb.. I.. 706. also I.. 846. and II.. 457). In 1702 it had been restricted 
to 500 acres {lb.. I.. 556). Brickell says it was 640 acres in 1737 
("Natural Hist, of N. C.,"' p. 12). 



Introduction. 15 

owners were not powerful. In Virginia and in South Caro- 
lina, where it was the custom to make large grants, a pre- 
dominant landed aristocracy soon sprang into existence. 
Situated in the midst of slaveholding States, North Carolina 
has not entirely escaped the influence of its environment. It 
has always been distinctly Southern, but only mildly aristo- 
cratic. It has at no time been dominated by a few powerful 
families. 

In the second place, the earliest settlements in the State 
were in that part where uncertain harbors prevented a direct 
trade with England. The settlers were thus left to an un- 
profitable commerce with the older communities in America. 
No extensive industry became established. The people were 
isolated, and produced but little more than they could con- 
sume. Thus this colony, with perhaps the most fertile soil 
on the Atlantic coast, lagged behind in material prosperity. 

To these two economic facts we must add a fact of a social 
nature, before our view can be considered complete. North 
Carolina was often turbulent. Whether it was for good 
reasons or for bad, there was frequent social disorder within 
its borders. As has been said, bad administration was to 
some extent responsible for this, but back of this cause lay 
the condition of the masses. There was little religious 
instruction and less education. There was not a printing 
press in the province.^ Governor Burrington's statement 
in 1732, that there was not in the province " a sufficient num- 
ber of gentlemen fit to be councillors, neither to be Justices 
of the Peace, nor officers in the militia,"' must be understood 
as a partisan utterance, yet it was not without a color of 
truth. The Virginians charged repeatedly that North Caro- 
lina, by shielding immigrants from prosecution for debts 
contracted before coming into the colony, became an asylum 
for the vicious classes, and it cannot be denied that such a 
law would bring some undesirable citizens into the colony. 



' The first printing press was introduced in 1749. "Wheeler : Hist, 
of N. C, I., 112. and Martin : Hist, of N. C, II., 54. 
'Col. Rec8.,III., 332-3. 



16 Constitutional Beginnings of North Carolina. 

Yet that does not seem sufficient. It is more probable that 
the economic disadvantages of small estates and of the lack 
of commerce induced the better class of immigrants, those 
who possessed means, to go to Virginia or to South Caro- 
lina, tlius leaving North Carolina for less substantial settlers. 



The Source of the Constitution. 17 



CHAPTER II. 

The Source of the Constitution of North Carolina. 

Section i. — T/ie Kings Idea of a Colony. 

In the private note-book of Henry VII. of England appears 
this entry: " loth August, 1497. To him that found the new 
isle, £10." This, it is supposed, refers to John Cabot's dis- 
covery of the American continent. If the assumption be 
correct, it means that the frugal king, at the moderate ex- 
pense of ten pounds, gained for his private property the 
entire Atlantic coast from Labrador to Florida. 

If to-day a region of unsettled country suddenly became 
American soil, we should expect it to be received and granted 
out to settlers in the name of the American people. But in 
regard to Cabot's discovery an entirely different method 
was followed. It was a doctrine of the English law that all 
land not otherwise occupied was the property of the king; 
that is to say, it was Crown Land, or terra regis, as the legal 
phrase ran. The king could dispose of such land as he saw 
fit. As a matter of fact, his American possessions were di- 
vided into what was afterward known as colonies, and each 
of these was settled in one of three ways. Thus there came 
to be proprietary, charter, and royal colonies. 

The proprietary colony was the method of colonization 
that first suggested itself to the English sovereign.^ This 
meant that some individual or corporation received the lands 
it was intended to populate, and with them the right to main- 
tain the government over the inhabitants who settled there. 
The Proprietary took the position of the king in reference to 



' Gilbert and Raleigh received their patents as proprietaries. Vir- 
ginia began under such a system of royal interference that the 
government was neither proprietary nor royal, but within three 
years went into the hands of a company that was really a proprie- 
tary. See Bancroft, Part I., chaps. VI., VII. 



D. H. HILL LIBRARY 
North Carolina State College 



18 Constitutional Beginnings of North Carolina. 

the colony. He was responsible to no one except to his 
sovereign. It is interesting to note that this institution was 
analogous to the old mark and county palatine, by which 
early Germanic emperors had held their turbulent frontiers. 
Similar conditions in the sixteenth and seventeenth centuries 
suggested a similai* method of meeting them. 

The cliartcr colonies existed in New England. Hither tlie 
king allowed a number of Dissenting congregations to come, 
in order that they might worship God as they chose. These 
colonies cannot be said to be embraced in the colonizing 
scheme of the English kings. So far as the monarch was 
concerned, they existed by sufferance. They had their lib- 
erties guaranteed by a royal charter, and were, in many 
respects, closely analogous to the English towns on the royal 
domain. 

The king held a kind of reversion on both of these kinds 
of colonies. If it happened that the conditions on which they 
were then held were violated, the king might sue for and 
recover possession of them. It did come about that on 
various pretexts the Crown succeeded in getting the courts 
to remit into its hands several of the colonies, which were ac- 
cordingly known as royal provinces. It will be noticed that 
this method was not in favor as a means of planting colonies. 
There is not one of the English planted colonies in the limit 
of the present United States in regard to which the king can 
be considered to have said t6 himself: " Go to, I will make 
me a colony." He chose rather to make some other person's 
colony his o%vn. 

Let us ask now: "Whence came the constitutions of these 
colonies?" Here writers are by no means unanimous. One 
class holds that our institutions were taken bodily from our 
English home; another claims that they were a product of 
the American soil; while still another, taking a middle view, 
think that they represent a complex process in which selec- 
tion and growth both appear. 

A mistake that has too often been made in this connection 
— as elsewhere, when writing of American institutions — is to 



The Source of the Constitution. 19 

look at the whole field from the standpoint of the New Eng- 
land colonies. These colonies, left largely to themselves, 
had ample opportunity to develop their institutions in their 
own way ; and, in truth, their constitutions were more charac- 
teristically American, in our present use of the term, than 
those of any other colonies. Outside of New England the 
forms of government were, in most cases, sent in the first 
instance from England. They came from men who, for tlie 
most part, had never been in America, and who, in many 
cases, had purposes m view which were foreign to the pur- 
poses of the colonists. 

If we are *o understand these constitutions we must re- 
member that they were not uniform. Each Proprietor had 
his own ideas of government. Each may be supposed to 
have consulted existing models before devising his own sys- 
tem. Wise old William Penn had been doing this when he 
wrote in the preface to his " Frame of Government " : "I 
do not find a model in the world that time, place, and some 
singular emergencies have not necessarily altered; nor is it 
easy to frame a civil government that shall serve all places 
alike."^ This idea is also well illustrated in the governments 
of Maryland and of North Carolina. Here the two royal 
charters were almost identical, and yet the administration 
of the provinces differed widely. The differing was due to 
the personal equation of the two proprietaries. 

With such varying factors to be reckoned with, one cannot 
say in any general way where the American institutions 
originated. All that a cautious person will say is that after 
careful research he thinks that the constitution of a given 
State originated in a certain specified manner. 

So far as North Carolina is concerned, it is the opinion of 
the present writer that its general form of government was 
modeled after the English manorial organization. Let us ex- 
plain what we mean by manorial organization. There was 
in England, until the days of modem reform, two local juris- 

' Proud : Hist, of Penn.. I., p. 197. 



'\ 

20 Constitutional Beginnings of, 'North Carolina. 

i 

dictions. On the one hand was tfie authority of the king, 
exerted through the sheriff in th^ count\- and through the 
reeve in the township; on the otlier hand was the authority 
of the lord of the manor, exercised either in person or through 
his steward. The one stood for the people and the people's 
leader, the king; the other stood for the land and for the 
land's owner, the lord. The one was expressed tangibly in 
the jurisdiction of the towTiship and of the count}'; the other, 
in the private jurisdiction of the courts baron and leet. Now 
it is tiie latter institution that we mean by tiie manorial or- 
ganization ; that is to say, that system by which the lord of the 
land was constituted the lord of the civil affau" of those who 
lived on the land. And of tiiese two institutions it was, we 
think, the latter that was imitated by the builders of the gov- 
ernment of Proprietary North Carolina. 

But it was not the simple English manor that was copied. 
It was, rather, the Count}- Palatine — in point of authorit}- 
the highest form of the manor. The most patent reason for 
saying this is a clause in the royal grant itself. By this it 
was declared that the Proprietors should " have, hold, use, 
exercise, and enjoy the same [their privileges] as amply, fully, 
and in as ample manner, as any Bishop of Durham in our 
kingdom of England ever heretofore had, held, used, or 
enjoyed, or of right ought, or could, have, use, or enjoy.'" 
It was also provided that the propert}- should be held, at an 
annual rent of tsvent}- marks, " as of our manor of East 
Greenwich, in Kent, in free and common socage and not in 
capite, or by knight's ser\-ice."'' Furthermore, it \rill be seen 
on examination that when the Proprietors organized their 
propert)' they carried into effect the features of the Palatinate 
organization. The Fundamental Constitutions, which were 
not enforced, and the ^temporar}' constitution, which was 
enforced, both strongly suggest the lord of the manor. In 
either case the Lords were the source of all real power. They 
appointed their executive agents; their own courts adminis- 

' Col. Recs., I.. 103. *IUd.. I.. 104. 



The Source of the Constitution. 21 

tered their own justice or preserved the Proprietors' peace; 
even the Assembly was a kind of court-baron to consider the 
welfare of tlie colony. Its laws were enacted by the Lords 
Proprietors with the advice and consent of the Assembly, but 
certain restrictions made them practically the will of the 
Lords. 

There is no better way of understanding the County Pala- 
tine in America than to examine the same institution in Eng- 
land. To arrive at this we have made an analysis of the 
constitution of the County Palatine of Durham, which we 
shall give in our next section. 



Section ii. — T/ie Palatinate Franchise.^ 

William the Conqueror, in order to prevent the rearing of 
a powerful landed aristocracy, had recourse to two measures: 
(i) He took care not to grant to one nobleman large adja- 
cent estates; and (2) he placed the administration of each 
shire in the hands of the sheriff, one of his own officers. 
There were, however, three exceptions. On the Scotch and 
Welsh borders and on the southeast coast, where an army 
from the Continent would be likely to land, he created large 
political divisions, and placed one man over each of them. 
Thus were created the Counties Palatine of Durham, Ches- 
ter, and Kent. Over the first two, in order that no strong 
feudal families might be founded, he placed Bishops ; but oVer 
Kent he thought he might venture to place a layman.* Of 
these counties, Durham was the most powerful; and because 
there was danger from the north long after the realm was 
safe from invasion from either west or southeast, Durham 



'In preparing this sketch we have used as a basis Robert Sur- 
tees's " History of the County of Durham." We have attempted 
to reproduce the general features of the Palatinate Franchise, and 
have not sought to fill in the more minute points which are not 
essential to our purpose, i. c, to a concept of the general appearance 
of the Palatinate. The publications of the Surtees Society have 
also helped us considerably. 

*Taswell-Langmead : Const. Hist, of Eng. (4th ed.), pp. 61, 63. 



22 Constitutional Beginnings of North Carolina. 

was still mighty at the period of the American colonization. 
Thus it happened that its franchise served as a model for 
some of the proprietary colonies in America, 

The most striking characteristic of the Palatinate juris- 
diction was its independence. The unique survival of the 
Anglo-Saxon earldom, it stood for that phase of English 
feudalism that most nearly approached the French duke- 
dom. Until Henry VIII., exasperated at its loyalty to the 
Catholic cause, curtailed some of the feudal incidents of the 
Bishop,' — which, however, were later on mostly restored, — 
that dignitary was practically sovereign in his bishopric. 
Qiiicqiiid Rex habet extra Episcopiis habet intra ran the 
maxim of Palatinate law.* At the head of the landed interest, 
the grantee from the king and the grantor to the county 
landowners, the Bishop exercised the feudal privileges of 
escheat, forfeiture, and wardship, and had the possession of 
mines, wastes, forests and chases. In civil and in mili- 
\z.ry affairs he was supreme. The courts did not give the 
king's justice and did not punish breaches of the king's 
peace, but awarded the Bishop's justice and held to account 
violators of the Bishop's peace. Cases between his subjects 
were to be decided in the Bishop's courts. Cases between 
the Bishop and his subject could be appealed to the Court of 
the Exchequer, in London.' The Bishop had, also, admir- 
alty jurisdiction of his coasts and navigable rivers, had his 
own money and his own mint, and had the authority to grant 
charters to cities. 

When the king had business with the county, or with part 
of it, he must communicate with the Bishop. Still the royal 
authority was fully asserted over this dignitary.* In conse- 
quence of its extreme independence the county was not, until 



'Surtees : Hist, of Durham, Vol. I.. Part I., p. Ixix. 

""lUd., Vol. I., Part I., p. xvi. 

^In the 17th century a case between the Bishop and the City of 
Durham was decided in the King's Court of the Exchequer. Sur- 
tees : Hist, of Durham, Vol. IV., Part II., p. 159. 

^Ibid., Vol. I., Part I., p. cxxxiii. 



The Source of the Constitution. 23 

1675, represented in the House of Commons. The Bishop, 
as a spiritual peer, sat in the House of Lords, and no doubt 
watched over the interests of the county in a general way/ 
Parliament fixed the amount of revenue that was expected 
from Durham. The Bishop and his officers determined 
how this was to be raised, and proceeded to collect it.' 

The territorial division was primarily into four wards' and 
the city of Durham. The wards contained parishes and 
chapelries. A parish was divided into constabularies, and 
these in turn into manors, villages, etc. 

The judicial system was of two ranks: the county courts, 
and the more strictly local tribunal. Of the former class 
were the regular English county courts of Law and Equity 
and of Gaol Delivery. The Justices for these were appointed 
by the Bishop, and had the numerous duties of the English 
Justices of the Peace of that time.* The courts of the second 
rank were the Halmote courts. These were the courts of the 
baronial hall, the " hall moots." Their business was to settle 
matters of customary tenure,* to make by-laws and injunc- 
tions, and to inflict penalties on guilty persons. They were 
held by the Steward, Bursar, or Terrar — or by any two of 
these — and always, as the records have it, " with others."" 
It was these " others " that gave the Halmote court its popu- 
lar feature. It made it the tribunal of the tenants of the estate, 
who composed the vill, and its judgment represented their 



' During the time of Cromwell, the Palatinate jurisdiction was 
suspended and the county was reorganized simply as a part of the 
realm. It was, therefore, allowed to send representatives to Par- 
liament. These sat in two of Cromwell's Parliaments. The Res- 
toration wiped this away. Cf. Surtees : Hist, of Durham, Vol. I., 
Part I., pp. cvi. and cxlvii. 

^ Ibid., Vol. I., Part I., pp. cxlviii. and 'ix. The king's oflScers 
collected customs in the county. 

^ The ward was only an arrangement for grouping the parishes, 
and had no civil functions. 

■•Woodrow Wilson : The State, p. 413. 

'"Durham Halmote Court Rolls" (Surtees Society, Vol. 82), Pre- 
face, pp. xiv.-xxxiii. 

^ Ibid., p. xi. Later on these courts were held by the Seneschal. 
Hist, of Durham, Vol. I., Part I., p. cv. 



24 Constitutional Beginnings of No}-th CaroUtm. 

opinion. Its mandates ran: " Injunctum est omnibus tenent- 
ibus villae,'' or " ordinattim est ex communi assensu."^ 

The executive functions of the Palatinate government were 
in the hands of officers deriving their authorit}- either di- 
rectly or indirectly from the Bishop. Highest of all lay offi- 
cers was the Chancellor of Temporalties. The ecclesiastical 
head, occupied — as was supposed — with religious affairs, en- 
trusted secular business to his chancellor. That officer was 
the administrative head of the government His it was to 
^^-ield the Bishop's authorit}-, albeit he was only an agent of 
his episcopal chief. Beside the high fimction of directing 
administration, he had what was then ahrays considered the 
highest judicial jurisdiction; that is to say, he presided over 
the court of Chancery. It was by virtue of this function that 
he was at times spoken of as Vice-Chancellor. 

The officer next in importance was the High SheriflF. He 
was appointed by the central authorit}', and at first had, 
doubtless, the large powers of the Norman sheriff; but by 
the seventeenth centur}' his power had been lessened by 
depriving him of the duties of actively commanding the 
count}' militia, and of actually collecting the revenue.' At 
no time in the histor}- of the Palatinate did he render his 
accounts in the Court of tlie Exchequer in London. He was 
responsible to the Bishop alone. 

There was also a Receiver-General, whose functions were 
the receiving and the disbursing of funds. He received the 
rents from the praepositi, or bailiffs, and the other dues from 
the constables.' The greater part of the Bishop's revenue 



' Durham Halmote Court Rolls, p. sxiv. 

*The.?e two duties had been given to the Lord Lieutenant and 
the Receiver-General. The former was first apjpointed in ]536. just 
after the Catholic uprisings, but the Sheriff continued to have nom- 
inal command. 

-In Hatfield's Survey of Durham (Surtees Soc. Vol. 32) there is an 
account in full of the Receiver-General for 13S4. One extract taken 
at random from this will show the exact fiscal relation: "Etde 
til- 16.S. Qd. de exitibus et proficuis villae de Easington currentibus 
in on ere prepositi ibid., cum 50.s. de perquisitis halmotorum ibid. 
Et de 54s. 4d. de aliis exit, et prof, ejusdem villae cum dominionon 
current, in onere prepositi. set constabularii. "' See p. 264. 



The Source of the Constitution. 25 

came from rents for land. He also received, until 1660, a 
considerable sum from fines, forfeitures and other feudal in- 
cidents. Connected with tlie latter source of revenue was 
the Escheator, whose mere existence testifies how important 
was the feudal right of escheat. 

The minor local officers were the coroner, the seneschal, 
and the bailiff. The seneschal was practically the old stew- 
ard on the manor. We find him appointed to care for the 
towns, towers, castles or manors of the Bishop. The bailiff 
was the local agent of the Bishop. He looked after his mas- 
ter's interests in general, collected local rents or certain feudal 
privileges, and was charged with reporting to the regular 
sessions of die count}- courts the violations of Palatinate 
law within his bailiwick.^ 

In the County Palatine, as elsewhere in England, actual 
legislation came into existence slowly. The ancient customs 
of the people, evidenced by judicial decisions, were for a long 
time the chief source of law. This was especially true of 
Durham. Here tlie extraordinary- privileges of the Palatine 
tended to retard law-making. There was no machinery for 
assembling the people to make their own laws. Whatever 
new measures of government the Bishop desired to introduce 
he had passed by his Council. This was an assemblage of the 
chief men of the countv% and was, possibly, a formal survival 
of that council which, in Anglo-Saxon times, met with the 
Ealdorman to devise administrative measures for the county.' 
It was composed, as the records say, of certain enumerated 
higher officers and "other nobles"; presumably any nobles 
who chose to be present.' Public opinion was made mani- 
fest at the count}- courts. If the people demanded any 
measure, their desire, found expression in the report of the 
grand jur}-, which brought the matter officially before the 
" sessions '' of the Justices. The wise old Bishops were 
usuallv too much afraid of losinsf their influence over the 



'Hatfield's Survey, p. xiii. HV. Wilson : The State, p. 410. 

* Hatfield's Survey (Surtees Soc., Vol. 32), p. xviii. 



26 Constitutional Beginnings of North Carolina. 

people to withstand rashly demands for reasonable reforms/ 
When the Bishop had decided to make a new law he pub- 
lished it through the courts/ 

Of parish government in Durham county but little need be 
said. The parish existed by virtue of English custom, and 
was in Durham but little different from the same institution 
elsewhere in the realm.' We note, however, that here it 
seems more decidedly an ecclesiastical institution. By the 
seventeenth century the vestry had already become " select," 
and in some instances the vicar had the right to assent to 
elections.* At the middle of this century, the time that 
most concerns us, the civil functions of the parish were car- 
ing for the poor, maintaining the highways, assessing the 
parish rate, and a few other minor local duties. At times we 
find the churchwardens called before the assize to answer 
for the execution of certain laws that had been made by Par- 
liament." Here, as elsewhere in England, there were con- 
stables to the parishes. They collected the local tax and 
executed the decisions of the local courts. 

We can now summarize the features of the Palatinate 
Franchise. The county was a constituent part of the govern- 
ment of England, subject in a general way to the larger gov- 



'Hist. of Durham, Vol. I., Part I., p. cxlviii. 

^ The following will suffice to illustrate this : " It is orderit by the 
Justices of Peas wythin the bysshopprick of Duresme, by com- 
mandement of my Lord of Duresme in eschewyng of more bryne 
which gretly hurtyth the hoU contre, as hereafter followythe, 
Fyrst, that no mauer person ne person bryne ne more fro the 16th 
of March unto the fyrst day of October, accordyng to the lawe and 
custome of this realme of long time used." — Hatfield ''s Survey 
(Surtees Soc, Vol. 32), p. xiii. The memorandum goes on to say 
that if any one is suspected of burning a moor contrary to this ord- 
inance, the township in which he resides must bring him before 
one of the Justices of the Peace, who shall condemn the culprit, if 
convicted, to imprisonment at the pleasure of the Bishop. 

^For an account of the historical development of the English 
parish, see J. Toulmin Smith : The Parish ; also Howard : Local 
Constitutional History of U. S. 

4 " Parish Books of Durham " (Surtees Soc, Vol. 84), pp. 2, 12, 26, 
27. 

'/&id.,pp. 39, 67. 



The Source of the Constitution. 27 

ernment, and in the actual administration of affairs it had a 
distinct machinery of its own. Within the county there were 
two forces : the Bishop and the people. The former was the 
chief source of authorit}\ His rule was central and per- 
sonal. He was the proprietary of the government. It was 
his agents that filled the ollfices. His exercise of power was 
restrained by public opinion, which was the only way of 
showing the popular will His ordinarily beneficent rule and 
the possibility of changing a bad Bishop soon, if one were in 
office, brought about a quiet and substantial government. 
Upon the whole the system was benignly paternal, and when 
in use by a conservative population was capable of yielding, 
as a system, a considerable amount of success. 



Section hi. — T/ie County Palatine in America. 

The Palatinate Franchise having proved to be a good form 
of government in England, and withal safe against a very 
strong development of popular liberty, the king and the 
Lords Proprietors considered it the best system for a colony 
planted so far away from royal oversight as America. More- 
over, of all conceivable constitutions, it was most in accord 
with the king's idea of what the constitution of England 
should be. Charles II., in common with all the other 
Stuarts, would have made the realm one grand property 
whereof the king should have been Lord Proprietor. 

Almost the first step of the Proprietors of Carolina showed 
that they, too, were in favor of the Palatinate system. They 
set about devising a scheme of government that contained 
all the characteristic features of tlie English Count\' Palatine. 
This was the widely known Fundamental Constitutions. 

These constitutions, although there is evidence that they 
were acceded to by the people of North Carolina,' were not 
as a whole put into force. Those features that it was thought 
possible to enforce with the conditions then existing in tlie 

'Col. Recs., III., p. 452. 



28 Constitutional Beginnings of North Carolina. 

colony were embodied in a temporary constitution, and that 
became the basis of the constitutional gTO\vth of the prov- 
ince. Speaking generally, all those provisions that related to 
the privileged classes and their position in society were held 
in abeyance; but there was no change in the spirit of the 
government It was still strongly central and personal. 

Examining the temporary- constitution systematically, we 
are first attracted by the fact that the chief officer of the gov- 
ernment bore the title of Palatine. This ^^'as undoubtedly in 
direct imitation of the Count}' Palatine. Furthermore, the 
Governor of the colony was at times called " Vice-Palatine." 
The Proprietary' was supreme. It had the veto power in 
legislation, and at first claimed the right of initiative. It ap- 
pointed the chief officers, and its chief officers appointed the 
minor officers. There was also a High Sheriff, with lessened 
powers, similar to those of the sheriff of the count}' of Dur- 
ham. There is the same Receiver-General of quit-rents, and 
the same local collectors, though not called bailiffs; the 
same system of land grants and quit-rents; and the same 
Escheator. To enable feudal land tenure to be perfect, as it 
was in Durham in its palmiest days,^ the statute of Quia emp- 
tores was relented. There was, also, the same system of 
courts, (i) The General Court corresponded to the cotmty 
court of the Palatinate, and was held by appointees of the 
Proprietors. It had the same jurisdiction and sat as Oyer 
and Terminer, Gaol Deliver}', King" s Bench, Common Pleas, 
and the Exchequer. (2) The local courts were the Precinct 
courts, which corresponded to the Durham Halmote courts, 
being held entirely under the control of the Proprietors and 
having the same local jurisdiction over the same tenants of 
the proprietors of the government In addition, the Vice- 
Palatine, by a deputation of the high authority of the Pala- 
tine, exercised chancer}' jurisdiction in the colony, just as the 
Bishop's deput}' exercised it in Diirham. 



"'The Proprietors had the right to their privileges, it will be re- 
membered. •• in as ample manner as any Bishop "'of Durham. (Col. 
Recs.. I.. 103 : also supra, p. 20.) 



The Source of the Constitution. 29 

Still, there was a difference between the Palatinate in 
Durham and in North Carolina. In the former place, cus- 
toms and traditional rights made it irregular in some of its 
details; it presented a broken surface. In America no cus- 
tom or tradition was to prevent its uniform operation. The 
Lords thought that they had simply to devise a system and 
put it into the way to work of its own accord. In Durham, 
- custom had preserved to the popular element of government 
some local functions; in North Carolina these did not appear. 
The proprietary scheme ruled them out. The royal grant 
had guaranteed to the people an assembly; but even this 
had been largely nullified by the Proprietors, who at first 
constituted their legislature so that for some time they 
remained chief wielders of its law-making power. 

The parish did not come into North Carolina till the colony 
was fairly settled, and during the proprietary period it was 
not uniformly and fully established.^ In those few parishes 
in which there were efforts to keep up the establishment, the 
civil functions were caring for the poor and assessing the 
local rate. Through an abundance of food in the colony, the 
former was not important, and the latter, being usually con- 
fined to expenditure for religious purposes, was but poorly 
paid by the Dissenters, and so it became but little more than a 
voluntary offering by the members of the Established Church. 
The other important function of the civil parish, the care of 
highways, was, long before the introduction of the parish, 
confided to officers appointed by the precinct court, and 
there it remained. 

The " open vestry " was never known in Proprietary North 
Carolina. The affairs of the parish were in the hands of a 
" select vestry," which was created in the first instance by the 
Assembly, and was replenished by co-optation. 

' Col. Recs., III., pp. 48, 152, 153. 



30 Constitutional Beginnings of North Carolina. 



CHAPTER III. 

The Proprietors and the Constitution. 

Section i. — T/ie Legal Status of the Lords Proprietors. 

' The powers conferred by the royal granf on the eight 
" true and absolute Lords and Proprietors "' of Carolina may 
be classified as (i) legislative, (2) executive/ and (3) relating 
to land. 

Taking up these in order, we find that in regard to legis- 
lation the Proprietors were given the right to make laws 
" by and with the advice, assent and approbation of the free- 
men of the said province." By this clause the Lords con- 
sidered that they had the right of veto and initiative in legis- 
lation.* By another clause they must " from time to time 
assemble in such manner and form as to them shall seem 
best " the freemen or the delegates of the same. The Pro- 
prietors interpreted this as giving them the entire control of 
elections and of districts of representation, as well as of the 
time and place of meeting, and of the adjourning and the 



' We have used for reference the grant of 1665, which does not 
materially differ from the first grant, that of 1663. Being the last, 
it was the one under which the Proprietors may be considered to 
have held. See Col. Recs., I., pp. 102-114. 

*They were : Earl of Clarendon, Chancellor of England; Duke of 
Albemarle, Master of Horse ; Earl of Craven ; John, Lord Berkeley, 
King's Councillor ; Lord Ashley, Chancellor of the Exchequer and 
later the Earl of Shaftesbury ; Sir George Carteret, King's Council- 
lor ; Sir John Colleton : and Sir William Berkeley, then Governor 
of Virginia. 

^ At this time the modern classification of government functions 
into executive, judicial, and legislative had not come into existence. 
This distinction" dates from Montesquieu. Before him, the right of 
administering justice was considered a part of the king's executive 
function. For obvious reasons, we have followed the older method 
of classification. 

* Lord Baltimore had these rights by the royal grant, but by wisely 
using the one and graciously foregoing the other he avoided any 
conflict with the settlers. See McMahon : Hist, of Maryland, L, 
p. 145. 



The Proprietors and the Constitution. 31 

prorogT-iing of the Assembly. In the intervals between the 
meetings of the Assembly the Lords could make ordinances 
dealing with all ordinary matters, but not in any way impair- 
ing the rights of '' freeholds, goods, or chattels." The power 
of making both laws and ordinances was limited by the re- 
quirement that all laws should be consonant to reason and 
as near as possible to the laws of England. 

The executive powers were all that were necessary' for the 
efficient management of internal affairs. Only in that they 
had not the actual sovereignty did the Proprietors lack full 
royal powers; and yet their authority was, for the purposes of 
their government, as ample as that of royalt}-. The charter, 
after conferring the general palatinate jurisdiction, went on 
to grant specifically the most important privileges embraced 
in that system. These were the civil functions of creating 
and filling offices; of incorporating towns, ports of entry, 
cities, etc.; of granting titles of honor, provided they were 
not the same as those used in England; of holding courts of 
justice and of punishing to the extent of life and limb; of 
pardoning offenses; of erecting counties and other local di- 
visions; of creating baronies, with courts baron and leet, and 
\vith views of frank-pledge; of collecting customs duties 
when laid with the consent of the Assembly; and of having 
the advowsons of churches. They also had the militar}- func- 
tions of making war against the Indians and other internal 
enemies, on land and on sea;' of raising and maintaining 
troops; of appointing officers for the militia; of fortifying 
their possessions; and of declaring martial law when they 
thought it necessar}\ 

These extensive powers were rather vaguely limited by 
reminding the Proprietors that their privileges did not con- 
travene their sovereign duties to the crown. There was, how- 
ever, another Hmitation, which, though not expressly men- 
tioned, was still a strong instrument in the hands of the 



The right of making war on foreign enemies was withheld, 
because that would have implied sovereignty in the Proprietors, 
and it might have involved England in war. 



32 Constitutional Beginnings of North Carolina. 

people against too arbitran^ a use of power by the Lords. 
This was tlie right on the part of tlie Assembly of consenting 
to money bills. It was but little advantage to the Proprie- 
tors that they could levy troops if the Assembly alone could 
pay them. This fact was of great influence in keeping the 
government weak, and, consequently, so timid that it soon 
lost the respect of the people. But in the case of the higher 
officers this restriction was almost neutralized by the fact that 
these officers received nearly all of their salaries from moneys 
taken in for quit-rents or from sales of lands. They were, 
consequently, not directly dependent on the \\i\\ of the 
Assembly. Only in the case of fees, which were fixed by the 
Assembly, were they even indirectly dependent on the legis- 
lature. 

In regard to land, the Lords were tenants-in-chief, hold- 
ing " in free and common socage," but still " true and abso- 
lute " proprietors, " saving always their faith, allegiance and 
sovereign dominion due to us, our heirs and successors for 
the same "; i. e., for the land. Besides one-fourth of all gold 
and silver ore that should be discovered, they were to pay " a 
yearly rent of twent}-- marks," receivable at the king's manor 
of East Greenwich in Kent. The land thus held could be 
granted to others in fee simple, fee tail, for life, lives, or 
years; to be held by such customs, rents, or ser\dces as the 
Proprietors chose to agree to. That the lesser grantee might 
know that his rights were safe, he was accorded the right of 
holding lands on the above-named terms. As a further se- 
curit}-, the statute of Quia emptor cs (i8 Edw. I.), by which 
subinfeudation had been forbidden in England, was made 
inoperative in North Carolina. 

So far we have spoken of the Proprietors only; and it is 
with them that the grant was chiefly concerned. There was 
only slight mention of the rights of the people. There was 
enough, however, to guarantee to them the common rights 
of Englishmen; that is to say, the right of consenting to laws; 
of exporting and importing commodities on the same foot- 
ing with Englishmen; and of not being tried for crime in 



The Proprietors and the Constitution. 33 

another colony than Carolina;' together with the English 
personal and property rights; liberty of conscience, although 
provision was made for church establishment; and the privi- 
leges of liege subjects of the English Crown. In order to 
encourage the planting of the colony, it was declared that 
certain specified articles, which it was thought were especially 
adapted to Carolina's soil and climate, should for seven years 
be admitted to England free of duty. 

The grant conferred essentially the same privileges that 
Charles I. accorded to the Proprietor of Maryland. It may, 
therefore, seem strange that while in Maryland the proprie- 
tary rule was well received, being twice abolished and as 
many times reinstated to the great satisfaction of the people/ 
in North Carolina it produced strong opposition and real 
misery, its abrogation being hailed by the people with 
delight. The cause lies in the personal qualities of the 
two proprietaries. Lord Baltimore used his extraordinary 
powers wisely, justly, and honestly. He realized for the 
County Palatine, as applied to colonization, whatever ad- 
vantages inhere in it as a system. In North Carolina the 
Proprietors, being eight in number, lacked unity of organi- 
zation. They were, also, not informed as to the conditions 
of life in the colony, and they made such unhappy selections 
of agents that their government became a burden to the gov- 
erned and a pest to the governors. These facts operated to 
make the proprietary system a failure in Carolina. The ex- 
perience of these two colonies — Maryland and North Caro- 
lina — leads us to conclude that the chief fault of the absolute 
proprietary colony was that it made the destiny of the people 
too much dependent on the will of the Proprietary. Still, any 
fair mind must agree that the system admitted of excellent 
results in proper hands. 

While on this point, we must say something of the circum- 
stances under which the grant was made. One occasionally 



' They were still allowed an appeal to the king. 
'McMahon : Hist, of Md., I., 141-2. 



34 Constitutional Beginnings of Xorth Carolina. 

encounters the idea that tlie government must have been 
especially odious because it was given to eight of the '' fav- 
orites " of Charles II. Now, there is a certain uncompli- 
mentar}- sense in which this term is at times used, but there 
is no just reason for employing it here. If by "' favorites " 
one means those whom the king called to help him in the 
affairs of state, there can be no objection to using the expres- 
sion; for, of the eight, five occupied high offices at home, 
and one more was Governor of the most powerful English 
colony in America. It is fair to suppose that, as statesmen 
went in those days, the Proprietors were among the best. 
At a time when all England went wild ^^■ith devotion to the 
restored Stuarts, nearly all of these eight men had the dis- 
tinction of being among that small number whose loyalty 
was not an outgro^^th of expediency, or of opposition to the 
arbitran.- rule of Cromwell. They had, for the most part, 
been loyalists before the war, and many of them had lost 
propert}- by their loyalt\-.^ 

That the good-natured king should have desired to reim- 
burse these losses was more than natural — ^it was honorable. 
That he should have paid the obligation out of his American 
lands — that species of wealth of which he had the most — was 
unexceptionable. If, to our minds, it is an unwarrantable 
stretch of prerogative for the king to assume to provide, of 
himself, for.tlie government of English citizens in America, 
it ought to be remembered that it was strictly within the 
custom of the time. 

Whatever may have been the Crown's legal right in the 
first instance, there was in 1665 ample precedent for the 
king's power to dispose of the government of the Carolina 
colony. Judged by the standard of the times — sometliing we 
should always remember in weighing historical actions — 
there was nothing improper about the transaction. 



' Clarendon. Colleton. Carteret, and John Berkeley had suffered 
•with Charles II. Albemarle, formerly General Monk, had helped 
to reinstate him. and Wm. Berkeley had as Governor of Virginia 
kept the inhabitants of that province lovallv affected to the Stuarts 
(Nar. and Crit Hist.. V., 286. note 2). 



The Proprietors and the Constitution. 



Section ii. — T/ie Proprietors' Theory of Government — 
Tlie Fundamental Constitutions. 

Having, as we hope, set the Proprietors in a just light, 
let us see how they acquitted themselves as governors. 
The most characteristic feature of the period is the confusion 
which grew out of the uncertain nature of the constitution. 
For the first fifty years of the life of the colony the inhabi- 
tants could not be sure that their government was stable. 
The Concessions of 1665 established one form of govern- 
ment, which, so far as the inhabitants were informed, was to 
be permanent. In 1670 the Fundamental Constitutions ar- 
rived. With them came a temporary constitution. The 
former was received by the Assembly,' and the latter was 
actually put into force. The existing system was reor- 
ganized in 1691. After 1670 the Lords sent three editions 
of the Constitutions to Carolina. These changes must have 
failed to give to the people that idea of permanency which is so 
necessary to any constitution. In 1680 Shaftesbury himself 
declared that there had never been any regularly organized 
government in the colony. Unquestionably the Proprietors 
were failures as rulers. It was only in 171 5, when the Con- 
stitutions became as a system forever impossible, and when 
the Lords relaxed their right to prescribe government and 
allowed the people to frame their own code of laws, that any- 
thing like regularity and security from change came into the 
government of North Carolina. 

From what has just been said it may be inferred that there 
were till 171 5 two constitutions for the colony, the one theo- 
retical and the other practical. We must now analyse these. 
The latter we reserve for another place, and the fomier we 
shall consider as regards both its elements and its relation 
to the constitution actually put into force. This is the more 
demanded because this system has rarely received just the 



'Col. Rec8.,III., 452. 



36 Constitutional Beginnings of North Carolina. 

treatment it deserves. It has been viewed, it seems to us, 
too much from the standpoint of nineteenth century democ- 
racy. 

The conditions out of which the Fundamental Constitu- 
tions arose were pecuhar. The moment during which they 
were conceived was a breathing-time just after two unsuc- 
cessful experiments with opposite radical ideas of govern- 
ment. English statesmen were pondering over their expe- 
riences, first under an absolute monarchy, and then under a 
government that grew out of a movement for an absolute 
democracy. The world has now come to think that Crom- 
well, with perhaps the best intentions, made as great a mis- 
take as the Stuarts made. It also knows that the military 
despotism, by which the Protector found it necessary to sup- 
port his authority, was not a necessary' accompaniment of 
popular libert}\ Englishmen of the time of which we are 
speaking understood the former fact but slightly and the 
latter not at all. To them each extreme seemed equally to 
be avoided. Accordingly, thoughtful people concluded that 
it was safest to trust the government to the middle class, the 
landed nobilit}'. From this time, and in accordance with 
this idea, there arose the Whig party, which in a bloodless 
revolution overthrew the party of the royal prerogative, and 
established the principles of English liberty in the important 
Bill of Rights. It was through its influence, either in office 
or out, that the kingdom was brought to a condition in 
which self-government was possible. 

It is a worthy tribute to Shaftesburv-, who, whatever his 
later course, was at this time considered a well-intentioned 
man, that he foresaw, when Whigger)- was a realit}' in the 
minds of but few, by what means the future was to be made 
safe. He, now that Clarendon had gone into voluntary' exile 
on the Continent, was the most influential of the eight Pro- 
prietors. When an ideally perfect system of government 
was to be de\dsed for the colony, he brought forward his 
views. Although Locke, the Philosopher, wrote the Consti- 
tutions, Shaftesbury inspired them. But the spirit in them 



The Proprietors and the Constitution. 37 

was an outgrowth of the time. The time was an unfortunate 
moment, when men had in their fright relapsed into the ideas 
of the fourteenth century. 

Locke's share of the work, however, must not be ignored. 
He suppHed the details for a plan whose general require- 
ments were furnished him. The young philosopher was 
doubtless under the influence of recent experiences, and it 
was then a score of years before he, among the forces of the 
" Glorious Revolution," published his great works " On Civil 
Government " and " On Toleration." Still the spirit that 
produced " The Leviathan " was not all lost on the young 
Locke. Throughout the Constitutions we see the principle 
of civil liberty continually asserting itself. Wherever the 
feudal outline, the required part, ceases, liberal ideas appear. 

In accordance with the idea of a landed aristocracy, the 
Fundamental Constitutions^ divided society into seven ranks. 
At the top were the Proprietors, who were always to be eight 
in number, and each of whom should have a seigniory, or 
twelve thousand acres of land, in each county. This gave the 
Proprietors one-fifth of the land in each county. One Pro- 
prietor, the Palatine, was at the head of the whole govern- 
ment. All tlie other Proprietors were associated with him 
so as to form the Palatine's court, the chief court of the prov- 
ince. All executive functions were grouped into seven 
classes, or offices, and a Proprietor was placed in each ofifice. 
Thus there was a Chancellor, a Treasurer, a Steward, etc. 
Each of these officers, with six associates, formed a court 
with supreme jurisdiction of the function or functions for 
which that officer stood. All these courts were integrated 
into a Grand Council, over which the Palatine presided, and 
which had an ad intermi ordinance-making power and the 
right of initiative in legislation. 

There were two ranks of hereditary nobility, landgraves 



' We have used in this sketch the edition of 1669. It is the first 
authorized edition and is most easily accessible. See Col. Recs., I., 
187-206. The Constitutions as amended in 1698 can be found in 
the Appendix to Vol. II. of the same series. 



38 Constitutional Beginnings of Xorth Carolina. 

and caciques. There must be one of tlie former with four 
baronies'' and triO of the latter with two baronies each in 
eveiy count}'. One man could have but one dignit}-. In 
case of failure of the heirs of one of these dignitaries, the 
Palatine's Court, or that failing, the Parliament -was to fill the 
vacanc)'. The lord of each seignior}^ or barony had the 
right to hold courts leeL He could, also, grant t>;\TO-thirds 
of his land to tenants for not more tlian three lives or 
twaity-one years; but the remaining one-third must be re- 
served for demesne. 

Thus we see that the Proprietors and the hereditary' no- 
bility had two-fifths of the land of each count}\ The re- 
mainder was to be held by the freemen, in small holdings. 
It was divided into four precincts, each of which contained 
six colonies. It was held directly of the Proprietors, the 
holders paying annual quit-rents for it If a man had from 
three to t^velve thousand acres the Palatine's Court might 
erect his estate into a manor. The lord of a manor had the 
same privileges on his manor that a landgrave had on his 
baronies, but was not considered one of the hereditary no- 
biUty. To render this system permanent primogeniture wzs 
recognized, and it was declared that these four kinds of estates 
should be indivisible, and, with the exception of manors, in- 
alienable. 

Below the four ranks already mentioned were the freemen. 
These were the smaller landowners. They made up the 
majorit}' of the people, and, as a matter of fact, were the only 
persons mentioned in the Constitutions, except slaves, that 
settled in Xorth Carolina. They were allowed to vote for 
delegates to the Pariiament, and if they had a certain amount 
of land could hold most of the minor offices. 

Proprietors, landgraves, caciques, and freemen — ^the last 
through their delegates — all met in a bieimial Parliament. 
All ranks sat together in one body, but when a Proprietor 
protested against a proposed measure, the body resolved it- 

^ 12,000 acres of land was a barony, a colony, or a seigniory. 



The Proprietors and the Constitution. 39 

self into four estates and repaired to different rooms to vote 
on the question at issue. If one chamber voted in the nega- 
tive the bill was lost. All laws to be voted on must have 
been prepared in the Grand Council and when approved in 
the Parliament must be endorsed by the Palatine and three 
Proprietors, or they were not binding. 

Below the freemen were the leetmen. These were tenants 
of the seigniories, baronies, or manors, and had certain legal 
rights against, as well as certain legal duties towards, their 
lord. On the marriage of a leetman or a leetwoman the lord 
was bound to give the newly married pair ten acres of land, 
for which not more than one-eighth of the yearly produce 
could be taken as rent. A leetman was under tlie legal juris- 
diction of the lord's court, without appeal to a higher tri- 
bunal. Moreover, he was ad scripts s glchac ; that is to say, 
he could not change his habitation without his lord's written 
permission. Whoever voluntarily became a leetman was a 
leetman; and the rank once acquired was, like every other 
rank of the Constitutions, hereditary.^ 

The seventh and lowest rank was slavery. A master was 
given absolute authority over his negro slave, but he was not 
allowed to bind their souls; for, contrary to a later practice 
of a part of the slave-owners in North Carolina," a slave was 
allowed the privilege of becoming a church member. 

The provisions tlius far recounted may be considered the 
necessary features of a landed-aristocratic government. Be- 
yond these there were no ver}' objectionable points. An ade- 
quate system of local courts was provided for the freemen. 
Trial by jury was guaranteed, but a verdict need not be 
unanimous. The English system of town government by 



' Bad as this institution was, it is doubtful if it was worse than 
the custom, then extensively practised in England, of kidnapping 
children and peasants for bonded servants in the American colo- 
nies. See Doyle : English Colonies in America, pp. 382-5. 

'As late as 1709. James Adams, the missionary, testifies that some 
slave-owners would not allow their slaves to be baptized because 
they thouglit they would have no right to enslave Christians. Col. 
Recs., I., p. 720. 



40 Constitutional Beginnings of Xorth Carolina. 

council, aldermen, and mayor was introduced. Jur}'men, 
voters, and officeholders must have a specified amount of 
land. Two ideas seem to have been taken from the Romans: 
(i) like Justinian, the Proprietors declared that there should 
be no commentaries on their body of law;' and (2) by mak- 
ing it a base thing to plead for money, they seem to have de- 
sired to introduce the custom by which the Roman nobles 
pleaded the causes of their clientes. 

The most strikingly liberal feature was the attitude to- 
wards religious belief. The Constitutions provided for per- 
fect toleration of all churches. To give a church legal 
standing it must have at least seven members. These must 
believe in a God who was to be publicly worshiped, and 
must declare their methcxi of testifying in a court of justice. 
It must be confessed that even in the present time of sects it 
would be difficult to call any body of people a church that 
could not come up to these requirements. The liberalness 
of this will be seen when it is remembered that it w^as devised 
at a time when the English Parliament was rushing into the 
passing of the iniquitous Test, Conventicle, and Five Mile 

xA-CtS. 

Another notably liberal feature was the provision for a 
biennial Parliament. In England the king and the dominant 
party were devising schemes by w-hich they could rule with- 
out a Parliament; but the Proprietors guaranteed the Caro- 
linians that they should have the right to elect, and to as- 
semble, their Parlianment even,- two years, whether or not an 
election were ordered or the Parliament formally summoned. 
If this arrangement were better than that of England, it far 
excelled that then in practice in the adjoining colony of 
Virginia, where the Assembly was not dissolved for eighteen 
years.* Moreover, there were no " pocket boroughs " in the 
colony, representation being fairly apportioned among the 
freemen. 

' Hadley : Introduction to Roman Law. p. 19. 

'Bancroft : Hist, of the U. S.. Vol. I., p. 50 'Ed. 1876). 



The Proprietors and tlie Constitution. 41 

To sum up, the Fundamental Constitutions were based on 
principles of like nature with those of tlie Whig- party. They 
were feudal in their tendency, but guaranteed what were then 
considered the most important personal rights. Their re- 
acdonar}' features were hardly worse than their generation, 
and their liberal features were much better than the time. 
They were a system that the English people might well 
have had for themselves. Indeed, their appearance was 
hailed with marked approbation. On all sides people said 
thit Locke's model was an ideal one. France and Gertiiany 
at any time in the seventeenth or eighteenth centuries might 
well have considered them a boon. Almost any Continental 
nation of that day might advantageously have adopted them. 
It was not till the manifestation of that reform spirit which 
the American Revolution transmitted to the Old World that 
the constitutions of most European governments showed 
any striking improvement on the principles of the Funda- 
mental Constitutions. 

But if they would have done for the Old World they would 
not do for the New. The distinguishing principle of gov- 
ernmental policy developed in the period of our early history 
was a return to nature; not, as Rousseau thought, as nature 
was in some ill-defined, prehistoric time ; but as nature then 
existed in the simple feelings and common sense of the 
people. The conditions of pioneer life made the existence 
of such an idea inevitable. In North Carolina it was uni- 
versal, and where it held sway the system of Shaftesbury 
and Locke could never come into use. 

Of this the Proprietors were half conscious. They sent 
along with the Fundamental Constitutions a temporary form 
which was partly an adaptation of the larger system. 
It did what tiie Governor was instructed to do; /. r., it ob- 
ser\'ed " what can at present be put into practice of our " 
Constitutions.* The original instrument was " received '' by 
the people' in North Carolina and was afterwards pleaded as 

' C!ol. Recs. , I. . 181. * » Ibid. , III. , 452. 



42 Constitutional Beginnings of North Carolina. 

the evidence of a compact between the people and the Pro- 
prietors. It never replaced the temporary form, but con- 
tinued for some time a kind of constitution in remainder, 
awaiting the time when it might come into its rights. This 
time never came.^ A more popular system took by pre- 
scription, and held by force, the authority of the government 
and its right was recognized in the Revisal of 1715.^ 

The effect of the Constitutions' was, speaking generally, 
negative. They prevented the development of a better form 



' It is likely that the Constitutions continued their anomalous ex- 
istence till 1715. We have no evidence that before this date they 
were repealed, but they were gradually falling out of the minds of 
the Proprietors several years earlier. This is shown by the fact 
that they are continually mentioned in the commissions to the Gov- 
ernors till in Gov. Tynte's commission, 1708, all reference to them 
is omitted (Col. Recs., I., 695). They are last mentioned in a Gov- 
ernor's commission, so far as we know, in 1702 (lb., I., 555), when 
Johnson is told to come "as near as possible to the Fundamental 
Constitutions." In 1706, the South Carolinians, addressing the 
House of Lords, claimed the benefit of that clause in the Constitu- 
tions which provided for liberty of conscience (16., I., 638-9). 

■ The Constitutions were first brought into Carolina in 1670 by 
Sayle (Hawks : Hist, of N. C, II., 463). It is difficult to say who 
was then Governor. At a meeting on Jan 20, 1670, the Palatine 
appointed Samuel Stephens (Col. Recs., I., 180); but in the in- 
structions that accompany the Constitutions there is a blank land 

grant dated " Jan., 1670," and in this, Peter Carteret is spoken 

of as Governor (/&., I., 183). These instructions were issued at the 
meeting at which Stephens was appointed, or at most not nioi*e than 
eleven days later. They could not have been issued earlier than 
the 20th, for on that day Berkeley was made Palatine and he is 
spoken of in the blank grant as such. The only reasonable con- 
jecture that does not countenance an error in the instriictions, is 
to suppose that Stephens was appointed but not yet sworn in, and 
that the old Governor, who seems to have been Carteret, was con- 
sidered as still the incumbent. There are certain objections to this 
solution, as it will leave us under the necessity of believing that 
Stephens and Carteret each held the office for two distinct terms 
(cf. 76., I., p. xvi.). 

^ A recent writer goes so far as to say, "The Proprietors organ- 
ized under the new system and sent directions to Governor Stephens 
to put it in force among the settlers on the Chowan" (Lodge : 
Eng. Colonies in America, p. 137). By the side of this let us 
place the real instructions. They run : '* Not being able at present 
to put it fully into practice by reason of the want of landgraves and 
caciques and a sufficient number of people ; however, intending to 
come as nigh as we can in the present state of affairs in all the col- 
onies of our said province, you are required," etc. (Col. Recs., I., 
181). 



The Proprietors and the Constitution. 43 

of government. Speaking more specifically, we may note 
t^vo effects: (i) They precluded the introduction of local 
self-government, a fact which North Carolina had reason to 
regret during her whole colonial period; and (2) they pro- 
duced confusion in the minds of the people and indirectly 
led to disregard for governors and government.' 



There were five editions of the Constitutions : (1) the orieinal 
draft, signed July 21. 1669 : (2) that of March 1. 1670. a slight revisal • 
(3) that of January 12, 1682 ; (4) one issued at some unknown date 
between 1682 and 1698 : and (5) that of 1698 (Hawks. II., 183-4, and 
Ramsay: Hist, of S. C. II.. 123, note). The last was verr much 
altered and contained but fortr-one articles (see Col. Recs "ll ap- 
pendix). In the minds of the North Carolinians there seem to liave 
been but two sets, that of 1669 and that of 1698. both of which appear 
to have been received in North Carolina (Col. Recs., III. 452-3) 
The Lords themselves declared that the copv of 1682. the onlv one 
?'°^cl^n?,^^ ^j?® P^'oP^i^tors. was the only authentic edition (76., 
1., dbS). The Constitutions were translated into French in 1682 
perhaps for the use of the French settlers, or for advertising pur- 
poses {lb.. I., 344). ^ 



44 Constitutional Beginnings of North Carolina. 



CHAPTER IV. 

The Analysis of the Constitution. 

The remainder of our task will be to trace the constitution 
as it actually was. This, in contradistinction to what we 
have just called the theoretical side of the Proprietors' gov- 
ernment, may be termed the practical side. We shall take 
up its parts in the order of their dignity, beginning with the 
highest. 

Section i. — T/ie Lords Proprietors. 

Prior to 1669 the Lords seem as a body to have had no 
executive organization. In October of that year^ they met 
and organized under the new Constitutions. The six Lords 
then attending were elected to fill the positions of Palatine, 
High Constable, Chancellor, Chief Justice, Admiral, and 
High Steward.* There is no evidence that either of these 
offices, except that of the Palatine, ever meant more than a 
new title to the name of him that filled the ofhce. Yet there 
was a show of keeping them up; and so closely were they 
clung to that in 1691, when the government was reorganized, 
they were included in the new plan." 

The Palatine, however, was an active factor in government, 
and was continued with unimpaired powers till the Proprie- 
tary period ceased. He, with the other Proprietors, consti- 
tuted the Palatine's Court, the only one of the Proprietors' 
courts that was organized. His individual power was small ; 
but his signature, three of his associates consenting, could 
efifect almost anything. At one time he seems to have had 



iCol. Recs.,I., 179. 

''On account of the absence of Clarendon and Sir Wm. Berkeley 
from England, two offices were not filled. These were the positions 
of Treasurer and Chamberlain. 

3Jbid.,I.,373. 



The Analysis of the Constitution. 45 

the right to name the Governor/ It was necessary for the 
Palatine to be the oldest Proprietor, and this was regardless 
of great age or inferior capacity. By this means the Proprie- 
tors bound themselves almost surely to forego a choice of the 
best man, and made it extremely likely that the reins of gov- 
ernment should always be in the hands of the veriest dotard 
of their number/ 

Section ii. — T/ie Govcr7ior. 

The determining of the policy of the government was in 
the hands of the Proprietors; but since they could not be on 
the spot themselves, each one appointed his agent or Deputy 
to represent him. As the Palatine was supreme among his 
associates, so his Deputy was supreme among the Deputies. 
This Deputy was the Governor, sometimes called the Deputy 
Palatine^ and at others the Vice-Palatine." The Fundamental 
Constitutions did not specifically recognize the office of Gov- 
ernor, the Palatine being there considered the head of affairs. 
The Governor was distinctively a feature of the makeshift 
constitution, and he was expected to give place to the Pala- 
tine in that day when the province should be perfectly or- 
ganized under the scheme of Locke. 

The Governor had for colonial purposes the general 
powers of the Palatine. He could exercise but few functions 
except with the consent of at least three of the Deputies. His 
chief power was his influence as titular head of the govern- 
ment and representative of the Proprietary authority. He 
was not fitted to have a conflict with the people or with any 



' See below, p. 47. 

* The Constitutions provided that the eldest Proprietor in Carolina 
should be Palatine. Consequently when a Lord came into the 
colony, he could without a commission assume the duties of Vice- 
Palatine or Governor. This was recognized bv the Lords in 1681, 
in the caseof Sothel. They seem to have receded from this posi- 
tion in 1691 wlien they declared : " No Proprietor single by virtue 
of our patent hath any right to the government or to exercise any 
jurisdiction there unless empowered by the rest" (Col. Recs., I., 
339 and 367). 

3 J7)7C?., I., 180, 200. " Ihxd., I., 345. 



46 Constitutional Beginnings of North Carolina, 

important branch of the administration, because when men 
ceased to be impressed by his dignity he was all but power- 
less. In such a case he was fortunate if he could prevent his 
enemies from securing his removal. If the Council should 
be opposed to him he could do but little. Through his con- 
ciliatory efforts, or through a unity of interests with the Pro- 
prietors, the Governor usually managed to steer clear of 
hostility from his brother Deputies, but he was not always 
so fortunate in reference to the representatives of the people. 
The most important function left to the Governor inde- 
pendent of his Council was the right to concur in all 
measures, either of the Council or of the Assembly. Thus 
he was equal in power to each of these bodies. He also 
called, and presided over, the meetings of the Council. He 
was commander-in-chief of the colonial militia, and of his 
own authority appointed the subordinate officers. In 1697, 
when England determined to establish admiralty courts in 
the proprietary colonies, the Governor of North Carolina 
was made Vice-Admiral,^ and from that time his official title 
was " Governor, Commander-in-Chief, and Vice-Admiral." 
He also, in the presence of the Council, administered to the 
higher officers of government the oaths of fidelity and alle- 
giance to the king and the Proprietors. He issued writs for 
the election of delegates, when directed to do so by the Pro- 
prietors or by the Council.' He had the execution of gen- 
eral orders, as enforcing the Navigation Act; received at 
times the probate of wills and granted letters of administra- 
tion;* conducted business between the government and 
other colonies, calling on the Council at times for advice; 
and had the care of such minor matters as taking a census, 
measuring the water on the bars, and making a map of the 
country. At first, and for- some time, he was directed to have 



'Col. Recs., I., 473. *Col. Recs., I., 181. 

^In the latter part of the Proprietors' rule the Assembly met of 
right biennially, and the writs were issued then at the decision 
of the Council. 

^Lawsof 1715, oh. 48. 



The Analysis of the Constitution. 47 

passed in the Assembly certain laws that pleased the Pro- 
prietors/ For about forty years he sat as President of the 
General Court,' and had chancery jurisdiction. Convicted 
persons could be reprieved by him pending an appeal to the 
Proprietors. 

The Governor was appointed by the Proprietors until 
1691/ when he was supplanted by a Deputy Governor ap- 
pointed by the Governor of Carolina, who, it was agreed, 
should be appointed by the Palatine.^ The Deputy Governor 
could be removed by the Governor of Carolina either at the 
will of the latter or by the directions of the Proprietors." The 
oldest Proprietor in North Carolina might take the office of 
Governor, being thought to have the right to supersede any 
Deputy. Such a Governor did not have to be approved by 
the king, as was necessary with any other kind of a Gov- 
ernor," but still could be removed by the Proprietors. 

At first no bond was required of the Governor, but when 
great complaint was made to the Crown in regard to illegal 
trade in North Carolina it was decided, in 1697, that the 
Deputy Governor should give bond for enforcing the Navi- 
gation acts. At first it was expected that the Lords them- 
selves should give bond for their officer, but they protested 
that they ought not to be expected to do this, for the de- 
cision' '* placed the approbation of their Governors in His 



' Col. Recs. , I. , 231. = See below, p. 66. 

2 The instructions of 1665 gave larger powers to the Governor than 
were granted in and after 1670. In addition to the privileges just 
named, he could appoint his own Council, nominate the Secre- 
tary or Surveyor-General in case the Lords failed to select them, and 
preside in person, or by deputy, over the Assembly, which was 
then unicameral (Col. Recs., I., 79-92). 

* Philip Ludwell, the first Governor of Carolina, was thus ap- 
pointed (lb., I., 373). We have not seen the commission of Smith, 
his successor, but Archdale, who came next (1694), was appointed 
by all the Proprietors {lb., I., 389), and, so far as the records testify, 
so were his successors. 

' The Governor of Carolina might be removed by the Palatine and 
three of the Proprietors, or by six of the Proprietors without the 
consent of the Palatine {lb., I., 374). 

«7Wd., I., .510. 

■' This decision was an Act of Parliament, whose direct jurisdiction 
extended in the colonies to matters of trade (lb., I., 476, 477). 



48 Constitutional Beginnings of North Carolina. 

Majesty." In the matter of trade, Parliament and the Crown 
were jealous of the powers of the Proprietors, and interfered 
to secure the proper collection of the customs. The king 
did not hesitate to instruct the Governor, through the Pro- 
prietors, by what means he was to execute these laws.' Ed- 
ward Hyde, the first Governor of North Carolina after 1691, 
is the first whom we know to have given bond. The amount 
of the bond in other colonies was two thousand pounds, but 
because North Carolina's trade was inconsiderable, one 
thousand was thought sufficient for Hyde.' 

Except in the case of Drummond, the first Governor, the 
tenure of office was during the pleasure of the Proprietors." 
The salary was at first rather uncertain. Governor Drum- 
mond, the Proprietors suggested, might be paid with a mo- 
nopoly of the fur trade, but there is no evidence that Berkeley 
put this idea into practice." In 1669 the Assembly enacted 
that thirty pounds of tobacco should be paid by him who 
" was cast " in each suit before the Governor and Council. 
This was not a salary for the Governor, but simply the fees 
which the Governor and Council collected as officers of the 
court." As early as 1686 the Governor of the southern colony 
was, we know, receiving two hundred pounds a year," and it 
is therefore not likely that the Governor of Albemarle was 



1 Col. Recs. , I. , 492, 496. ' Ibid. . I. , 773. 

3 Dr. Hawks (Vol. II., pp. 142-3) says the Governor was to " rule 
three years and then learn to obey." This is hardly correct. 
Berkeley was instructed to appoint a Governor for three years 
(Col. Recs., I., 52), and appointed Drummond, doubtless for three 
years. Yeamans, who was appointed Governor of Clarendon in 
1665. was to hold 'vluring pleasure" (76., I., 95. 97). Samuel 
Stephens, Drummond's successor, appointed in 1667, held in the 
same manner {lb., I., 162), and so did all the other Governors 
whose commissions we have. Dr. Hawks's error was doubtless 
due to certain advertisements of the Clarendon colony, published 
in 1663 and in 1666, in which such a statement as he quotes 
was actually made {Jb., I., pp. 43. 154, 157). This scheme to sell 
land could have no constitutional importance, for the Governor of 
Clarendon was in 1666 holding; under a "during pleasure" com- 
mission. One cannot fail to notice also the bad policy in making a 
Governor rule first and then '' learn to obey." In ordinary systems 
it is wise to make him ''• learn to obey " before he rules. 

^Col. Recs.,I.,52. ^ 7;,^^., i., i85. « 7&id., L, 391. 



The Analysis of the Constitution. 49 

without any salary.' We arrive at definite information in 
171 1, when Edward Hyde's salary was two hundred pounds 
a year. Governor Eden's was three hundred pounds.' This 
seems to have been voted to each new incumbent for his 
term of office by the Council.^ It was paid in quarterly 
payments out of the funds arising from the sale of lands and 
from the quit-rents. 

If the office became vacant through the death or absence 
of the Governor, the oldest member called the Council to- 
gether to elect a President of the Council, who administered 
the government until superseded by a Governor regularly 
appointed by the Proprietors.^ The President received the 
salary that it was customary to pay to the Governor." While 
the colony was under the direction of a Deputy Governor, 
Harvey, the incumbent, died. Henderson Walker, as Presi- 
dent of the Council, succeeded him, and for five years guided 
the affairs of the province so much to the liking of the people 
that in 1706 the popular party induced the Proprietors to con- 
sent to having the government again under a President.* So 
much confusion arose from the attempt to enforce this con- 
cession that the Lords thought it advisable to return to the 
original method.' 

When a newly appointed Governor arrived he presented 
his commission to the assembled Council, who published 
and recorded it. He then took the oaths of office and occu- 
pied his seat as presiding ofificer of the Council.* In the eyes 
of the Proprietors, considerable dignity was attached to this 
seat. Sir Peter Colleton, writing to the Governor in 1683, 
reminds him of his power in the Council and the Assembly, 
and says : " You ought to keep good order in the debates of 



' Edward Randolph said that in 1691 the Deputy Governor of 
North Carolina had no salary ; but as Eandolph mentions him as 
" one Jarvis," a name unknown in the records of the time, some 
doubt is thrown on the entire statement (Col. Recs., I., 467). 

» Ibid. , II. , 1 70. = Ihid. . II. , 450, 460. 

* Ibid. , I. , 790, and II. , 460. * Ibid. , II. , 460. 

•76td.,I.,709. ■'/Wd., I.,750. » J6id., I., 841. 



50 Constitutional Beginnings of North Carolina. 

the Council when any one speaks he ought to do it with his 
hatt off and with the respect due to the place who are there 
a representative of the Palatine and by consequence the 
king from whence the Palatine's power is originally derived 
and it was in Culpepper's case, who made a disturbance 
in Albemarle in Carolina for which he was indicted of high 
treason at the King's Bench Barr declared to be treason for 
any man to take up arms against our government, it being 
levying warr against our king."^ It must be confessed, how- 
ever, that if Sir Peter's knowledge of Proprietary law was as 
limited as his knowledge of the art of writing clear English, 
his opinion is of but little value. 

Section hi. — T/te Cou7icil. 

In regard to membership, the history of the Council in 
Proprietary North Carolina divides itself into four periods. 
In the first there were six, eight, ten or twelve members who 
were selected by the Governor. This period ended with the 
temporary constitution of 1670, when the Council was made 
to consist of the five Deputies, who represented the colonial 
nobility, and five additional members elected by tlie Assem- 
bly. The latter represented the people. The third period 
began in 1691, when the Council was composed entirely of 
the Deputies. Finally, a last change was made in 1724,' 
when the Deputies were abolished and the membership was 
fixed at twelve, or less, all of whom were appointed by the 
Proprietors. 

If the powers of the Governor independent of the Council 
were small, those of the Council independent of the Gov- 
ernor were still smaller. Its right to disagree with a propo- 
sition of the Governor seems to have been rarely exercised. 
As among the Proprietors there was a strong reluctance to 
merge the wishes of the individual Lords into the will of the 



'Col. Recs.,I.,345. 

-JWd., II.. 515. The Lords decided to introduce this feature in 
1718(J6id.,IL,299). 



The Analysis of the Constitution. 51 

Palatine, so there was among the Deputies a disposition for 
each to act, not for the colony, but for the interest of his 
chief. 

The powers of the Governor and Council when acting to- 
gether were, however, considerable. They varied with the 
changes in the constitution. During the first period, when 
the colony was small and the Assembly met annually, many 
matters could be carried to the legislature which would 
otherwise have gone before the Council. In the recess of 
the Assembly the Council^ had most of the executive powers. 
It appointed the officers of all courts erected by the Assem- 
bly, and could suspend temporarily an officer appointed by 
the Proprietors. It could punish all officers, civil, religious 
or military, who violated their trusts. It issued and revoked 
commissions to military officers, granted reprieve, subject to 
tlie final action of the Lords, issued warrants for land grants, 
saw that settlers had the common personal and property 
rights of Englishmen, and did anything else that was not 
affixed to some other organ of government.' 

In the second period the Council underwent a peculiar 
change. Two institutions now performed the functions of 
the older Council. These were the Council and tlie Deputy 
Palatine's Court. The membership of the former we have 
already stated ; the latter was composed of the Governor and 
the five Deputies." Both bodies were provided for in the 
Fundamental Constitutions, although they were now changed 
as to make-up. 

The Council, or Grand Council, as it was at times called, 
was intended to be a semi-popular institution. It was a 
makeshift for the Grand Council of the Constitutions, and 
was endowed with all the powers of its model. It could de- 
cide disputes as to jurisdiction and procedure in the lower 
comts; declare war against the Indians, and make treaties of 



'After this when we use the term "Council" we mean, unless 
otherwise designated, the Governor and Council. 
'See for this period. Col. Recs., I., 79-92. 
' So far as we know there were no Deputies till 1670. 



52 Constitutional Beginnings of North Carolina. 

peace, alliance and commerce with the same; levy military- 
forces ; prepare all bills that were to come before the Assem- 
bly; decide matters relating to the Proprietors or to the 
Deputies; expend money voted for specific purposes by Par- 
liament; and register the appointed Deputies/ On it was 
conferred as a temporary matter the authority to establish 
such courts as the Council " for the present time think fit for 
the administration of justice, till our Grand Model of Gov- 
ernment can come to be put into execution."'' To this was 
added the function of warrants for issuing land grants. Fi- 
nally, the Governor was instructed to "goveme" witli the 
Council — whatever that term may have been held to mean. 

One who reads casually the instructions to the Governors 
of this time will be apt to imagine that the Deputies acted 
only as a part of the Council. Such is not the case. They 
were authorized to represent the Palatine's Court of the Con- 
stitutions, and were thus empowered to convene tlie Assem- 
bly, to pardon offenses, to elect to offices in the Palatine's 
disposal, to erect ports of entry, to expend funds, except 
those granted by the Assembly for specific purposes, to nega- 
tive acts of the Grand Council and of the Assembly, and to 
have all powers not otherwise granted which under the royal 
grant belonged to the Proprietors.' By the temporary^ ar- 
rangement they were given the power to consent to legisla- 
tion.* Later on they had acquired the right to decide certain 
questions relating to land grants, as well as to adjourn, pro- 
rogue, or dissolve the Assembly." 

The latter of these two bodies was by nature the stronger. 
Apart from the fact that it represented the Proprietary in- 
terest, it actually controlled the Council; for, it will be re- 
membered, the Deputies and the Governor constituted a 
majority in that body. That the stronger should have 
usurped the properties of the other, and the weaker should 
have become atrophied, is but natural. Accordingly, we find 

' Col. Recs., I., 196-7. ^ Ibid., I., 182. ^ Ibid, I., 193. 

* Ibid. , I. , 183. 'Ibid., I., 239. 



The Analysis of the Constitution. 53 

that in 1691 the Proprietors realized that the function of pro- 
posing laws was all that was left to the Council, and, since 
the people petitioned against the exercise of this function, 
they abohshed the Grand Council altogether," and reor- 
ganized their Deputies into wliat we have called the Council 
of the third period.' 

By the beginning of the third period the usurpation of the 
Deputies became complete- What had been before a tem- 
poran.- Palatine's Court was now called a Council. In North 
Carolina, which was left to be reorganized as the Governor 
of Carolina saw fit, there seems to have been little change in 
the machiner}' of government The change in the title of the 
Council came gradually. As late as December 9, 1696, the 
Council that met Archdale at the house of Francis Jones was 
called the Palatine's Court' 0\\"ing to a dismal lack of 
documents on this period we do not know just when the 
change was completed. Judging from the powers held when 
we do get definite information, one would say that all the 
functions which were possessed by the two older bodies were 
given to the one new institution, except, of course, the pre- 
paring of laws. 

In the fourth period there is no constitutional change ex- 
cept as to membership. In the latter half of the preced- 
ing, and in all of this, period the records of the Coimcil are 
well presers'ed. From these we are struck \\\xh the larg« 
amount of judicial business done by the Council. It had 
much to do -^-ith lapsing the grants of, and issuing new 
patents for, land ; and occasionally it probated wills. By this 
it will be seen that it was a regular court of record.* 



'Col. Recs.. I.. 381. 

*It is improbable that either Council or temporarv Palatine's 
Court exercised all the p<")wers implied in constructing them like 
the two features of the Constitutions. The impossibility of intro- 
ducing this instrument would prevent this : besides, the Proprietors, 
being supreme over both institutions, did not hesitate to take to 
themselves such business as they could handle better. 

»Col. Recs.. I.. 472. 

* For treatment of the Council as a court, see below, p. 71. 



54 Constitutional Beginnings of North Carolina. 

The most considerable of all its rights was the appointing 
of all those officers not named by the Proprietors. The 
effect of this w^as to place for a time the disposition of ever>' 
higher office, except the delegates to the Assembly, in the 
hands of the central power,** The Coimcil appointed the 
associate justices of the General Court, Justices of the Peace 
in the Precincts, the Sheriff, or Provost Marshal. In addi- 
tion it could fill temporarily any vacancy that was, of right 
in the hands of the Lords. 

The Council sat as the Upper House of the Assembly. In 
this capacity its authority extended to any act of the Lower 
House, except to the passing of the budget, which seems to 
have been beyond their interference." Now, as at other 
times, it was presided over by the Governor, who, however, 
had no vote in making a majority. All the members, includ- 
ing the Governor, received a salary equal to that of the 
members of the Lower House. For the time it was the 
Upper House ; it had a Secretar\' — ^who was the regular Sec- 
retary of the Province and of the Council — a Doorkeeper, 
and a Alessenger.' These officers were chosen by the Upper 
House, and corresponded to the officers of the other house. 
Each set, taken severally, received the same salar}-. When 
sitting as a Council merely it had a ]Messenger, who received 
an annual salary of twent}-^ pounds.* 

In 1722, on receiving directions from the Palatine, the 
Chief Justice of the colony was allowed by virtue of his 
office to sit as a Councillor, his rank being next to that of the 
head of the government.' In 1727 the Sun-eyor-General of 
His Majesty's Customs in America was also declared entitled 
to sit in the Council of any colony in which he might be.* 



' Rpgistrars of precinct courts were conditionally elective by the 
people. 

* This assertion is based on the minutes of the Assembly. Here, 
while various other acts are sent to the Upper House for concur- 
rence, no reference is made to such an action in regard to the money 
bill (Col. Recs.. II.. 675). 

"Col. Recs., II., 623. 

* Ibid., II., 607. ' Ibid., II., 460. * Ibid.. II., 673. 



The Analysis of the Constitution. 55 

The power of removing a Councillor was always in the 
hands of the Lords. If a Deput>- should die or leave the 
province, the Governor and Council could appoint another 
to hold till the Proprietors named some one else. A Coun- 
cillor thus appointed could perform all the duties of Dep- 
uties, except to vote for a man to fill a similar vacancy. One 
could do this only when confirmed under the seal of the said 
Lord.^ Until 1718 the Councillors met at their o\nti expense. 
In that year they agreed that for the future the necessan.^ ex- 
penses of the meeting should be defrayed from tlie funds in 
the hands of the Receiver-General.' 



Section iv. — T/u Assembly. 

The General Assembly is the title by which the legislative 
body of North Carolina \vas usually kno\sTi,' although at 
times we find the expression " Grand Assembly." It first 
convened in 1665.* but under what system we cannot say. 
We do know that the instructions sent to Sir William Berke- 
ley, who was authorized to settle the government of Albe- 
marle, empowered " the Governor and freemen, or the major 
part of them, the deputies or delegates, to make good and 
wholesome laws " for the colony. Later on instructions 
were sent directly to Drummond/ but they are not preserved. 
Under which of tliese the first Assembly met we do not 
know. 

We come to firm ground with the Concessions of 1665.* 
It is from this point that our definite knowledge of the his- 
torv' of the Assembly begins. The Assembly, it •was de- 
clared, should be unicameral, and composed of the Governor, 
the Council, and twelve delegates of the people. As soon as 



' Col. Recs.. I.. 375. * JWd.. H.. 323. = Ihxd.. I.. Si. 

*See Weeks: "'William Drumniond.'' yational Mag.. Apr., '92. 
If. as was likely. Drumtuond's instructions (Col. Recs.. I.. 93) were 
similar to the Concessions of 1665. the Assembly must have met in, 
or soon after, January of this year ; for by the Concessions the elec- 
tion of delegates was held January 1st. 

*/Wd.,I.,93. ' . * Ibid.. I., 19. 



56 Constitutional Beginnings of North Carolina. 

the county could be divided into precincts, the inhabitants 
were to meet on the first day of each Januarj- to elect two' 
delegates from each precinct, a majority of tliese delegates 
being necessary to transact business. The Governor, or his 
Deputy, ought to preside, but if neither of these could be in- 
duced to be present the body could choose its own president. 

Left as it was under Proprietar}^ influence, the Lords seem 
to have thought it safe to confide to this body extensive 
powers. Accordingly, it had the right to appoint its own 
time of meeting; to adjourn from time to time, or from 
place to place ; to make laws, provided they were not contrary 
to reason, to the interests of the Proprietors, or to anything 
otherwise stipulated in the Concessions, and provided they 
were as nearly as possible conformable to the laws of Eng- 
land; to establish courts of justice; to lay taxes on all prop- 
erty but the unsettled lands of the Proprietors; to erect 
baronies, manors, precincts, and other political divisions; to 
establish ports of entry; to provide military defense; to in- 
corporate towns; to naturalize foreigners; on certain condi- 
tions to prescribe the quantity of land allotted and the man- 
ner of allotting it; to appoint such ministers of religion as 
should be provided for; and to determine its own quorum, 
provided it were not less than one-third of the whole. The 
laws when passed by the Assembly and signed by the Gov- 
ernor and three Deputies were published and, unless vetoed 
by the Proprietors, remained in force one and one-half years. 
If the Lords approved them they were in force till repealed, 
or till they expired by their own provisions. 

The Concessions were copied and sent out in 1667 as Gov- 
ernor Stephens' instructions.^ They remained in practice 
till 1670. 

By the temporary constitution of 1670 Albemarle wzs 
divided into four precincts, — Chowan, Perquimans, Pasquo- 



* The Concessions omit the word '"two," evidently by oversight ; 
but the instructions to Governor Stephens (1667). otherwise exactly 
the same, supply it (Col. Recs., I., 167). 

»Jbi"d.,I., 167. 



The Analysis of the Constitution. 57 

tank, and Currituck, — each of which had five delegates in the 
Assembly. The twenty representatives and the five Depu- 
ties — who now for the first time appear — made up the As- 
sembly. As soon as they met they elected a Speaker, and 
that being done, they chose tlie five persons who, with the 
Deputies, made the Council. 

In the presence of such an effective engine of the Proprie- 
tary influence as the Deputies, it is but natural tliat the As- 
sembly should have lost some of its former powers for the 
benefit of the new institution. The spirit of tlie new form of 
government was predominantly proprietary. The immediate 
effect on the Assembly was to make it but little more than a 
tool of the Proprietors. Its chief function was now legisla- 
tive. The Governor, " by and with the consent of the As- 
sembly," made such laws as he saw fit. All laws must be 
signed by the Governor and three of the Deputies, after 
which they remained in force two years unless repealed by 
the Proprietors. If, however, they were confirmed by the 
Lords they remained good laws until repealed by the Assem- 
bly or until they expired by limitation. 

The Fundamental Constitutions' provided that the Assem- 
bly should meet biennially, and gave it the right to convene 
without the call of the Governor. The temporar}- constitu- 
tion, however, simply directed each Governor in turn to call 
an Assembly " as soon as conveniently you can after the 
receipt of these instructions." There is nothing further in 
the instructions, but we know that in the latter part of the 
centur}' the Assemblies became almost regularly biennial, a 
circumstance which, though not evidenced by formal 
records, is well attested by numerous allusions in the corres- 
pondence of the time. 

The changes of 1691 made actually apparent what had 
before been in the earlier stages of development; they com- 
pleted the evolution of the Upper House. By the provision 
of the temporary constitutions of 1670 the Deputies and the 

'Col. Recs., I., 199, 201, §§71-80. 



58 Constitutional Beginnings of North Carolina. 

representatives had composed the Assembly; from which, as 
it seems, the Governor was excluded. This left the consent 
of the Governor and three Deputies to all laws an affair 
entirely out of the Assembly. From the custom of the Gov- 
ernor and Deputies meeting to consider the measures of the 
larger body grew the distinct organization of the Upper 
House. This growth was accompanied by the gradual drop- 
ping of Deputies from the Lower House, as we shall now 
venture to call it. This process was complete, and formally 
recognized by the Proprietors in 1691. 

A few years later, in 1696, the region to the south of Albe- 
marle was erected into Bath coimt}" and given two represen- 
tatives in the Assembly.^ Nine years later it was divided 
into three precincts, each of which was allowed tv^'O dele- 
gates.' In 1722 Bertie precinct in Albemarle was created 
and given two delegates. This made a membership of 
twent}-eight in the General Assembly, the highest point 
reached during the Proprietar}- period. 

By the time of the Carey RebelUon, the Assembly had ac- 
quired considerable importance. It was no longer over- 
shadowed by the Proprietar\- interests. Free from the re- 
striction which came from giving tiie initiative in legislation 
to the Governor and Council,' it now began to develop in 
dignit>' and power, until it may be said to have been at length 
the chief factor in government. Through this process the 
Lower House gained the ascendancy, becoming practically 
the entire Assembly.* 

This increased authorit}^ is shown by the part the Lower 
House took in the troubles arising from the Carey Rebellion. 
In 1738 Glover and Carey, the rival claimants to the gov- 
ernorship, agreed to refer their claims to this body for arbitra- 
ment ;° and in 171 1, when it was necessary that some part of 
the government should be found strong enough to settie the 



' Col. Recs., I., 472. 'Ibid.. I., 629. ^/Wd., I., 381. 

*From the Carey Rebellion to the close of the Proprietary period 
the Lower House seems to have had more power than it was allowed 
in the succeeding Royal period. 

^Col. Recs.. I., 697. 



The Analysis of the Constitution. 59 

affairs of the colony, the Assembly came to the front as the 
regulating authorit}'. Its exercise of power indicates its 
supremacy. It assumed to arrest Carey,^ and dared to nullify 
all laws, judgments and other acts of government that had 
been made in the last two years, except marriages, probates 
of wills, letters of administration, sales and conveyances of 
lands when made between residents, provings of right to land, 
contracts and bargains.' Besides this, it attempted to regu- 
late the future. It provided by act for the punishment of 
sedition, made regulations for qualifying officers, fixed the 
penalty for changing the oath of office, recognized the cc«n- 
mon law of England in XorLh Carolina courts, adopted cer- 
tain statutes of the British Parliament, settled the manner of 
filling vacancies in the places of Governor and of Lord's 
Deputy, and in the way of private bills provided for settling 
claims arising from alleged irregularities in Moseley's ad- 
ministration of the office of Sun^eyor-General. To this it 
added an address to the Lords, in which were stated calmly 
and intelligently the \'iews of the Assembly on the existing 
condition of government. The people of North Carolina 
had spoken to the Proprietors before this, but usually to 
complain of grievances in the way of harsh laws or unscrupu- 
lous officers. Now they appeared in a constructive capacity. 
The Assembly passed from an almost continual opposition 
body to what we may call a body of friends to the administra- 
tion. There was in this change a marked advantage to the 
colony. Aside from whatever sentiment we may have for 
Moseley and the " popular partv^'' we cannot fail to notice 
that the triumph of Pollock and his friends brought with it 
the confidence of the Proprietors in the Assembly, and this, 
we know, led to many wnse laws and wnthal to a long period 
of peace, prosperity and real constitutional growth. Neither 
Carey nor his followers could have brought about this result. 
The real interests of the colony both at home and abroad 
demanded a conservative policy. That is what the dominant 
party pursued. 

'Col. Recs..I.,780. * 7 Wd.. I., 784-794. 



60 Constitutional Beginnings of North Carolina. 

The social condition of the people favored an extension of 
the authority of the Assembly. The Proprietors, the Gov- 
ernor and the people all wanted peace. It was necessary to 
have a power strong enough to assure it. The Assembly 
alone seemed adequate. The Proprietors' government was 
just at that time terrified before the Indian hostilities. The 
Lords were only too glad to find in the colony a force strong 
enough to bring harmony out of the existing discord. 

The confidence of the Proprietors soon manifested itself 
in an important way. It had for some time been a real evil 
that the laws, never having been printed, were become so 
confused that, except by long and inconvenient searching of 
the records, it was impossible to know just what was law. As 
a relief for this the inhabitants asked that the laws might be 
codified. The Lords consented, and soon after the arrival 
of Governor Eden the Assembly took up tiie task of making 
what is known as the Revisal of 171 5. 

When the student of the constitutional history of North 
Carolina comes to this point he feels like expressing his relief 
in a long-drawn breath. He is on solid ground at last. The 
confusion which a dubious system and meager records have 
hitherto brought to him now gives place to certainty. He 
now has the outiine of the government clearly set forth in 
well preser\^ed records. After 171 5 there is no need to com- 
plain of lack of materials. 

The Assembly of 171 5, the first called by Governor Eden, 
was harmoniously constituted. The outcome of its work 
was fifty-seven laws, either revisals of former enactments or 
entirely new measures.* Act fifty-seven " repeals all former 
laws not herein particularly excepted."* The most import- 
ant for us at present is the act relating to the election of 
members of the " biennial and other Assemblies."' 



' These laws are preserved in two excellent manuscripts in the 
State Library at Raleigh. Titles of the acts, with Burrington's 
comments, are given in Col. Recs., III., 180-189. The important 
acts of the code are given in full in Ibid., II., pp. 206, 207, 213, 884, 
885, 886, 888 and 889. 

^Ibid., III. , 189. » Ibid. , II. , 213. 



The Analysis of the Constitution. 61 

This act stipulated that the freemen of Albemarle county 
should elect five delegates from each precinct, and that those 
of Bath and other counties should have two for each pre- 
cinct They were to meet at certain specified places on the 
first Tuesday in November of alternate years and select their 
delegates from the freeholders. Foreigners, mulattoes, In- 
dians, and minors were not allowed to vote, and one year's 
residence as a rate-payer was required of all others. The 
election was held by a marshal, or his deputy, who took the 
deposition of all whom he suspected of illegal voting. Each 
voter was required to bring his written ballot subscribed 
by himself. Returns of the election are not mentioned, but 
from a later source we learn that it was the custom to send 
them to the Governor and Council.' Each officer who had 
held an election was required to attend the Assembly during 
the first three days of the session, in order to be at hand to 
give evidence in contested election cases. The regular 
Assembly was biennial and met on the first Monday in No- 
vember at the place of its last meeting— unless the Governor 
and Council twenty-one days beforehand designated another 
place. As regards calling, proroguing and dissolving the 
Assembly, the Lords and their agents were supreme. 

If a representative-elect did not make his appearance by a 
time specified in the summons, he was fined twenty shillings 
for each day he was absent. The quorum of the Lower 
House, here called the House of Burgesses, was one-half of 
all the members elected; but if eight were met they had the 
right of adjourning from day to day until a quorum arrived. 
A bill, to become a law, must be signed by the Speaker in 
the presence of seven of his brother-members, as well as by 
the Governor and a majorit)' of the Council. All special 
Assemblies were to be chosen as in the case of the regular 
Assemblies. This act, says Burrington in 1731, "was an old 
law taken from the Lords Proprietors' original constitutions, 
and hath undergone little alteration '" in the revisal. 



' Col. Recs. , n. , 575. » lUd. , III. , 180. 



G2 Constitutional Beginnings of North Carolina. 

By this time a slight advance in its authority to repeal 
laws seems to have been made by the Assembly. In 1716 
the Proprietors directed the Council and the Assembly to 
repeal a recent law by which North Carolina bills had been 
made payable for quit-rents.' Evidently the Lords had re- 
linquished the right of repealing laws tliemselves, or con- 
sidered it better policy to induce the Assembly to repeal 
them. The distinction was \vithout a difference, however; 
for the Council gave the directions the force of law and in- 
structed tlie Receiver-General to take only English money. 

So far as the Assembly was concerned the administrations 
of Eden, Pollock, Reed, and Burrington (first term) were 
quiet enough ; but it was otherwise with that of Sir Richard 
Everard. From the beginning there was a contest between 
him and the legislature. 

In 1725, the first year of his administration, Everard, fear- 
ing to encounter the popular party, prorogued the Assembly 
before it had met. The Lower House refused to recoernize 
the validity of such a prorogation, and assembling on the day 
originally set, proceeded to organize the House." All they 
could do brought no recognition from the Governor, Avhose 
action they stigmatized as illegal. They declared that at 
their next meeting they would transact no business until 
their privileges had been confirmed by the Governor and 
Council, voted an address to the Proprietors, and then ad- 
journed till the day for which they had already been pro- 
rogued. On reassembling, they declared that they did so 
according to adjournment, recognized the officers elected at 
the previous meeting, and in various other ways endeavored 
to establish the legality of their previous assembling.' 

This Assembly (1726) is the first regular session of whiclt 
we have the journal. It will be interesting to note here the 
formalities by which business was transacted. On the ap- 
pointed day the members came together and received the 
election returns from the Provost-Marshal. Next two 

' Col. Recs.. II., 250. 'Ibid., II., 575. Ubid.. II., 608. 



The Analysis of the ConstUutiori. 63 

members were sent to the Upper House to inform them that 
the Lower House was met and desired instructions for elect- 
ing a Speaker/ In • reply, the Upper House sent two mem- 
bers requiring the Lower House to attend to receive in- 
structions. The inferior body then went en masse and were 
formally instructed to select their Speaker. They returned 
to their hall, elected their Speaker, informed the L^pper 
House of the fact, and signified their readiness to present 
him. The superior body repHed that they were ready to 
receive the person chosen, whereupon the Lower House at- 
tended the Upper House and formally presented tlieir pre- 
siding officer. The Governor then addressed both Houses 
m a short and perfunctory speech, and the Speakers official 
position was considered established. 

On returning to their hall, the Upper House was informed 
that the Lower House was ready to receive the members of 
the Council who should be sent to witness the qualification 
of the representatives-elect. Accordingly, two Councillors 
were appointed for this duty.' The House itself, being thus 
legally convened, then swore in its own inferior officers, — the 
Clerk, the Doorkeeper, and the Messenger. It next resolved 
itsell into a Committee of the Whole on Propositions and 
Grievances to prepare an answer to the Governor's speech. 
When ready, this answer was presented by the Speaker, who 
was accompanied by the whole House. In this session, when 
the Governor and Council decided to prorogue the Assem- 
bly, the Lower House was summoned and the Governor 
delivered the prorogation in person. The Lower House 



'It will be seen that the Lower House was in a dilemma. They 
had— and legally, as they claimed — elected Maurice Moore for 
Speaker. How could they now ask for instructions to elect a 
Speaker without acknowledging the illegality of that other election V 
Their solution of the problem was adroitly managed. Either 
advisedly or otherwise, Maurice Moore did not appear, and they 
immediately declared that his office was vacant, and then proceeded 
to elect another man for Speaker (Col. Recs. , II., 608). 

* Some of the Councillors, it was required, must witness the swear- 
ing-in of delegates, and if any delegate came late, other Councillors 
must be sent for before he could take the oath. 



64 Constitutional Beginnings of North Carolina. 

considered this illegal, and instructed the Speaker to pro- 
nounce the prorogation, which being done, they considered 
themselves legally adjourned. 

From this Journal we gather some further particulars of 
the powers and constitution of the Lower House. It had the 
right to expel a member; to decide contested election cases 
involving membership in their body ; to remit taxes ; to send 
for persons, papers and records, with the object of redressing 
grievances; to appoint a Public Treasurer; and to pass money 
bills without the concurrence of the Upper House, Each 
member of each House received ten shillings for each day 
that attendance on the Assembly kept him from his home. 

Each House had a Clerk/ whose duty was to keep the 
records and to issue warrants for commitment at the order of 
the House. His salary was, it seems, one pound a day.* 
For extra work he received extra pay. At this Assembly 
it was enacted that the Clerk should have two pounds for 
each warrant of commitment. 

The Messenger's regular duties are not stated. He does 
not seem to have been the bearer of messages between the 
two Houses, for this duty was entrusted to members ap- 
pointed for that purpose. We are told no more than that he 
executed the warrants of commitment, for doing which he 
received in each case one pound for each day during which 
he had the offender in custody. Besides these fees he had 
a regular salary, which was one-half as much as that of the 
Clerk, and which was just equal to that of the Doorkeeper. 

We cannot close this sketch in a better manner than to 
relate an incident which very well illustrates the Assembly's 



'The Secretary of the province was regular Secretary of the 
Counril and acted in the capacity of Clerk when the Council sat 
as the Upper House. 

* At this Assembly he received twelve pounds as his regular salary. 
The delegates served for thirteen days, and it is probable that, inas- 
much as the Clerk took office on the second day — being elected on 
the first — he served for twelve days. This would make his sa'ary 
a pound a day. This, as well as other salaries, it must be remem- 
bered, was in colonial bills, which were then depreciated to one- 
fourth of their face value in English money. 



The Analysis of the Constitution. 65 

jealousy of its privileges, its lack of the knowledge of its 
limitations, and its naive candor in recognizing and correct- 
ing its mistakes. It seems that one John Richards had been 
imprisoned by the Provost-Marshal on the verbal order of 
Chief Justice Gale, although a mittiinus was obtained the 
next day. The case being brought before the Lower House 
on petition from Richards, that body declared the commit- 
ment illegal and ordered the Provost-Marshal to relinquish 
the petitioner. Now, Richards, being no member of the 
House, this order was beyond the privileges of that body, as 
the members were made to see on the very next day. In- 
stead of devising some ingenious bill which would cover its 
retreat from an untenable position, the House frankly ac- 
knowledged that it had no power to release from custody 
any one not its own member, repealed tlie previous order, and 
seemed to have thought its dignity none the worse for its 
mistake. 

Section v. — The Judicial System. • 

The judicial system embraced the General Court, the Pre- 
cinct Courts, the Court of Chancery, the Admiralty Court, 
and, in a manner, the Council. 

T/ie General Court. — Until the arrival of the temporary 
constitution of 1670 the only tribunal in the colony, so far as 
we know, was held by the Governor and Council. This is 
indicated by a law signed by the Lords Proprietors, January 
20, 1670, which granted the " Governor and Council in time 
of court " thirty pounds of tobacco for each action, to be paid 
by " him that is cast."' The Concessions of 1665 had granted 
to the Assembly the authority to create the courts that should 
be found necessary, but had left the appointment of judges 
and other officers to the Governor and Council.' In the 
sparsely settled territory of the infant colony one court seems 
to have been thought sufficient for all causes. It seems to 
have combined in itself the jurisdiction in law and in chan- 
cery as well as in criminal cases. 

' Col. Recs. , I. , 1 85. ' 75td. , I. , 82, 84. 



66 Constitutional Beginnings of North Carolina. 

The temporary constitution gave the power of establish- 
ing courts to the Governor and Council/ who, however, 
made no change in the court they had. The growth of the 
colony had necessitated the erection of Precincts, or districts 
of representation in the Assembly. It was consequently a 
part of the same process to make these Precincts the terri- 
torial bases of local courts. Here then was a differentiation. 
The older tribunal was now knowTi as the General Court, 
and became the appellate court of the colony, the protot^^pe 
of the present Supreme Court of the State. 

This court was held by the Governor and the Deputies 
until near the end of the centur}-. In 1685 tlie Proprietors 
concluded that it would be better to take the trial of causes 
out of the hands of these officers. Accordingly, the Gov- 
ernor was ordered to appoint four discreet men " to be Jus- 
tices of the County Court of Albemarle." He was also to 
appoint a Sheriff/ who, with the justices, was to hold the 
General Court. The Governor and Council were to be a 
court to hear complaints against these new justices.' When 
in 1691 the Proprietors remodeled their form of government 
this new feature was incorporated into it* and continued there 
throughout the Proprietary period. Like many other orders 
of the Lords, this one was not put into execution until long 
after it was issued. As late as 1695 the General Court w-as 
held by the Governor and Deputies,' and it is only in 1702 
that we know that the new system was in use." The loss of 
court records between these tw'o dates makes it impossible to 
say whether or not the change was earlier than the latter 
year. We only know that in this year Samuel Swann, Wil- 
liam Glover, and John Hawkins, sitting by virtue of a dci/i- 
vius from the President of the Council, held the General 
Court.' 



'Col. Recs.. I., 182. 

'This use of the term "Sheriff" recalls the time when the 
English Sheriff was a judicial officer ; here it simply meant chief 
judge, and had no administrative significance. 

2 Col. Recs.. I., 351. '•JWd., I., 375. *76id., I., 442. 

«IWd., I.. 566. 

'In 1694 and 1695 the Governor and Deputies sat with one or two 
"assistants. " These were perhaps men who were better acquainted 
with the law of the colony than the former officers, and were chosen 
to advise on technical points. We hear nothing of them in this 
capacity after this date (cf. Col. Recs., I., pp. 405. 442). 



The Analysis of the Constitution. 67 

The next step, and the last for us, was taken in 171 3, when 
one of the Justices was made a Chief Justice, with a com- 
mission directly from the Proprietors/ Christopher Gale, 
one of the most remarkable of North Carolinians, became in 
that year the Chief Justice, although his commission did 
not arrive until one and a half years later. He was, it seems, 
the first to hold the office/ The number of his associates' 
varied. In 171 3 it was t\vo, in 1716 ten," in 1724 two,* and 
after other changes it became about eight." 

The Associate Justices were equal in authority with the 
Chief Justice.' In 1716 it took two Associates to transact 
business in the presence of the head of the court,' and in 
1 718 it was ordered that no court could be held without 
this dignitar)', and that when all were present a majority 
was to decide.' The court met three times a year.' In the 
early part of that century it was allowable for a Justice to 
come do^vn from the bench in order to represent a client 
before the court," but in the Revisal of 171 5 there is a law 
which forbids this, in either the General or the Precinct 
Court." 

The authority of the General Court was derived from two 
commissions. Under one it had the power of the courts of 
King's Bench, Common Pleas, and Exchequer: under the 
other it was a General Session of the Peace, and a Court of 
Oyer and Terminer, and Gaol Deliver>-." The members of 

'Col. Recs.,II.,80. 

in^^7^\lil'\'^u\^\^^^ Moseleyas the first Chief Justice, hold- ■ 
ing from 1 < 07-1711, but mentions no authority for the statement 
»Col. Recs.,II..264. ■'76/d., II.. 525, 551. 'Ibid, 11 570 

•When the Royal Governor. Burrington, was disputing with the 
Assembly on this point, that body claimed that the powers of the 
Assistants were not equal to those of the Chief Justice They based 
their claim entirely on a clause in the king's letter of instructions 
« H'%r'^'°' V?^ '' '^''^ ^'^^ ^"^^'^ °f a custom to sipport thefr 
caHon n> r"^K ^'^^^ "}«"tioned it. The failure to do so is an nd 
cation of the absence of the custom (Col. Recs III 169-175) 
'76id..II., 264. ' 

rol^'^^^yiT^ *^'^ change was made in 1718 it does not seem to have 
reached the colony until 1724. Ibid., II., 299, 525 551 
'Ibid.. II.. 265. 'o/6^•d., I., 590. 592. ' " '^^Ibid., Ill 181 



68 Constitutional Beginnings of North Carolina. 

the Council and other " principal officers " had general com- 
missions of the peace.^ This gave them the right to meet 
with the General Court when it sat by virtue of the latter 
commission; but the court records show that they very sel- 
dom availed themselves of this privilege. 

From the General Court there was an appeal to the king. 
This, however, was of little consequence on account of a 
royal instruction of 1689, forbidding the Governors to allow 
appeals for cases involving a less sum than ^500.* This, to- 
gether with the inconvenience and expense of taking wit- 
nesses to England and the delay in the English courts, re- 
duced appeal to a practical nullity. We have no record of 
an appeal during the Proprietary period.' 

The General Court had certain non-judicial functions. It 
could regulate fares at ferries and appoint ferr\-men,' direct 
the repairing of roads/ and by the direction of the Assembly 
it apportioned taxes and ordered the payment of tlie public 
indebtedness.' 

The executive officer of the General Court was the Sheriff, 
or Provost-A'Iarshal. These two terms are found side by 
side in the early histor}- of the colony, but by the eighteenth 
century the latter is found exclusively as the official title, 
although "Sheriff" is still met in common use. The ap- 
pointment to this office was made regularly by tlie Governor 
and Council. Both Albemarle and Bath counties had Pro- 
vost-Marshals, although there was no General Court in the 
latter. In the closing years of their regime the Proprietors 
themselves appointed one Provost-Marshal for the whole 
colony,' This was of but little consequence, however, for 
Bath count}', by an especial arrangement, was allowed to 
keep its distinct officer.* 

Besides executing the orders of the General Court, the 



'Col. Recs., II.. 526, 556. 'Ibid.. II.. p. 161. 

'At one time the General Court decided that there was no right 
of appeal from its decisions to the king (Hawks, II., 207-9). 
«Col. Recs.. II., 475. 'Ibid., II., 470. ^Ibid.. I.. 429. 

'Ibid., II.. 569. 'Ibid., II., 606. 



The Analysis of the Constitution. 69 

Provost-Marshal summoned juries, which were drawn after 
the English fashion ;^ appointed his deputies, who did for the 
Precinct Courts what he himself did for the central tribunal,* 
and at the direction of the Council notified the members, 
through his deputies, when a call had been issued for the 
convening of an Assembly.' He also, through his deputies, 
held the election for the members of the Assembly,* and exe- 
cuted the commands of the Council when it sat as a court 

The General Court also had a Clerk. His duties were 
merely those of a scribe. He was appointed by the Chief 
Justice,' and his remuneration was derived from fees. 

The earliest Attorney-General of whom we have informa- 
tion was George Durant, who held the office in 1679.' The 
oflfice continued until 1729, although we have but slight 
mention of it before 171 3.' It seems to have been con- 
trolled by the Governor and Council under their general 
authority to appoint court officers. 

T/ie Precinct Court. — This court was held by several jus- 
tices of the peace, — there was no fixed number, — who were 
appointed by the Governor and Council.' One of the num- 
ber was the Chairman, or, as he was at times called, the 
Judge.* They held frequent courts, Perquimans having in 
1703 seven in each year.*" There being no court-houses in 
the colony, the court met until after 1722 at the residence of 
some conveniently situated planter." 



' Col. Recs., I., 412. *7Wd.. I., 791-2. »/6id., II.. 460 and 516-7. 

*Ihid.. II.. 214, 215. *76irf.. III.. 201. *76td., I.. 313. 

'In 1696 Edmund Randolph said that there was no Attorney- 
General in North Carolina, but he seems to have referred to an 
oflBcer of the Admiralty Court, the one that was afterward called 
the Advocate. At any rate we know that there was an Attorney- 
General in North Carolina in 1694, cf. Ihid.. I., 438. 

"Dr. Hawks (vol. II., p. 194, but see Ih.. 189) is inclined to 
think that in 1711 it was wholly inherent in the Governor to ap- 
point the Justices of the Peace. But in 1703 tlie commissions for 
Perquimans Precinct were signed by the Governor and Council, 
and later on there is abundant evidence that this was the regular 
method (cf. Col. Recs., I., 574, and II., 526, 570). 

'Col. Recs.. I., 522, 531, and II., 725. 

'"/Wd., I., 574, 575. " Ibid., III., 191. 



70 Constitutional Beginnings of North Carolina. 

The Precinct Court had jurisdiction over all civil suits 
under fifty pounds, and fulfilled the function of the English 
Orphans Court. It also had some non-judicial business. 
Owing to the late introduction of the parish, it received many 
of the duties which in England were in the hands of the 
vestry, and which in New England were left to the Select- 
men. It was the unit of local government in North Caro- 
lina. It cared for highways, creating road districts and ap- 
pointing overseers for them,^ appointed constables,' granted 
franchises for building mills, gave permission to build 
bridges, and authorized the opening of new roads.* With 
the Clerk was recorded, in open court usually, the marks by 
which the settlers distinguished their cattle and hogs.* 

The officers of the Precinct Court were the Marshal and 
the Clerk. The former executed the orders of the court and 
was the deputy of the Provost-Marshal. The duties of the 
latter were merely clerical, and he seems to have been ap- 
pointed by the Secretary of the Province." 

The Court of CJiancery. — ^When the Proprietors took the 
General Court out of the hands of the Governor and Council 
they did not carry with it the chancery jurisdiction which 
they had formerly lodged there. This court continued to be 
held by the Governor and Council till the end of the Pro- 
prietary period." 

The Admiralty Court. — This court v/as instituted to en- 
force the acts relating to trade. It was an extension of the 
English Admiralty Court, whose powers it had in local mat- 
ters. Previous to 1698 all affairs that would rightly have 
come under its cognizance were by an act of 15 Charles II. 
left to the common law courts.' In this year, however, North 
Carolina was attached to Virginia for this purpose and one 
tribunal was made to serve the two provinces.' This ar- 



'Col. Recs., I.. 493. The General Court in a few instances are 
known to have appointed road overseers (cf. 76., II., 261). 

* /bid.. I., 486, 493. = /bid.. I., 531, 533. •*/&id., I., 388. 

"lUd., I., 574. «76i(i., III., 150, 197. Ibid., I., 471-3. 

«Jbtd.,I.,490-l, 510. 



The Analysis of the Constitution. 71 

rangement did not last long, and early in the succeeding cen- 
tury the colony had its own Admiralty Court. 

The officers of this court were a Judge, a Register, a Mar- 
shal, and an Advocate. They were appointed by the Ad- 
miralty Court in England/ to whom they were obliged to re- 
port,^ but vacancies were temporarily filled by the Governor 
and Council." 

T/ie Council as a Court. — Besides being for a long time 
the General Court, and continuing to sit as the Court of 
Chancery, the Council had certain other judicial functions. 
Wills were proved before it,* and executors' accounts re- 
turned to it." It could divide lands, and at times heard 
charges against citizens." It tried officers for misconduct 
in office,' and we occasionally find it binding over to the 
General Court persons charged with ordinary offenses.* 



Section vi. — Finances. 

There were three sets of fiscal officers in North Carolina; 
(i) The Collectors of the Customs, (2) tlie Receiver-General 
and his deputies, and (3) the Public Treasurer. The first 
collected the import duties for the king. He was appointed 
by the Surveyor-General of His Majesty's Revenues in the 
Southern District' of America. The second collected the 
quit-rents, and was appointed by the Proprietors. The third 
received the taxes levied by the Assembly and collected, as 
it seems, by the Precinct Marshals." He was elected by the 



'Col. Recs., I.. 632. «76id., II., 762. 

'76id., I., 491, and II., 520, 765. 

*Law8 of 1715, Ch. 48. *Col. Recs., II., 493-4. 

•Ibid., I., 376, 855. 

'Cf. the trial of Tobias Knight. J6., II., 341-349. 

«76id., II., 56, 59. » 76td., I., 842-3. 

'"There is mention in the records of 1713 and 1714 of a Precinct 
Treasurer (7t>., II., 66, 124). This may have meant the Precinct 
Marshal or it may have indicated a distinct officer. There is not 
enough evidence, however, to warrant the statement that such an 
officer continued for any considerable time. While he d id exist, he 
paid out moneys at the order of the Assembly and appeared in every 
sense a true treasurer. (See also 76., III., p. 151.) 



72 Comtitutional Beginnings of North Carolina. 

Lower House of the Assembly and to that body was respon- 
sible. He was always looked upon as a most important bul- 
wark of popular liberty. The office was doubtless of early 
origin, but it first comes into notice early in the eighteenth 
century.^ All direct taxes of the colonial government were 
poll taxes, and were levied upon white adult males and col- 
ored adult males and females, bond and free. 



Section vii. — Miscellaneous Officers. 

The Register. — This officer vra& in existence in the colony 
from the first. One of the laws of 171 5 (ch. 38) provided 
that he should be appointed by the Governor from three 
freeholders who should previously have been selected by 
the voters in the precinct; and this was doubtless the method 
from the first* Thus there was a popular element in the 
selection of Registers. The duties of the Register were 
registering deeds, which were often for personalty, and were 
usually acknowledged in the precinct courts, and, until the 
appointment of parish clerks, the recording of births, mar- 
riages, and deaths. 

Constables. — These were appointed by the Precinct Courts. 
To each was assigned a district, there being several in each 
precinct. Besides the usual duties of constables, they made 
lists of the tithables for the use of the vestr}',' and sum- 
moned the coroner's jury. The slight mention of the office 
in the records would seem to indicate its small importance. 

The Coroner. — The Concessions of 1665 provided for this 
officer. Then he was appointed by the Govenior and Coun- 
cil, and a law, which Burrington pronounces an old one, in 
the Revisal of 171 5,* shows that this method was retained 
throughout the Proprietary period. 



'Col. Recs., III.. 151. 

*The Fundamental Constitutions provided that he should be 
appointed by the Chief Justice's Court from three men selected by 
the freeholders. As the Governor and Deputies held this court, it is 
likely that they took their idea from the Constitutions, and thus 
introduced the method which was embodied in the Revisal of 1715. 

■Ibid., I., 830. ■•Laws of 1753. pp. 2, 3. 



The Analysis of the Constitution. 73 

The Secretary of the Co/ony.— The Proprietors always 
appointed this officer, whose duties were chiefly clerical. 

T/ie Naval Officer. — This dignitary was appointed by the 
Governor at first* and later on by the Lords.* His duty was 
to " clear " vessels and to perform other similar functions at 
the ports. By 7 and 8 William III. he was required to give 
bond to the Collector of the Customs for the due perform- 
ance of his duties.* 

Surveyors. — Lands were laid out either by the Surveyor- 
General or his deputies, one of the latter being in each pre- 
cinct. These were appointed primarily to survey public 
lands, at that time an important function. At first the Sur- 
veyor-General was appointed by the Proprietors,* and he 
appointed the Deputies," but later on both were named by 
the Governor and Council." 

The Escheator. — ^The Proprietors' right to tenure involved 
the right of escheat. Property escheated, as in England, for 
failure of heirs, and for conviction of felony. When lands 
were thought to be escheatable the Escheator, or his deputy, 
called a jury, who took evidence to find if there were any 
heirs.' No heirs appearing in the colony, it was held that 
there were none in existence. The Escheator seems to 
have beeri appointed by the Governor and Council. 

'Col. Recs., I., 492,7. *Ihid., II., 497. »7&id., I., 497. 

«75id., I., 73, 211. »76td., I., 728. •IMd., I., 872. 

'7Wd.,II.,305. 



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The American Journal of ARCHiioLOGY 



AND OF THE 



HISTORY OF THE FINE ARTS. 



Thb American Journal op Archeology is the organ of the Archaeological Institute of 
America. It contains original articles by archjeologists of established reputation both in Europe 
and America, also the Papers of the American School of Classical Studies at Athens, Corres 
pondence. Book Reviews, and News of excavations and discoveries in all countries. 



CONTENTS OF VOL. VIII, No. 4, OCT.-DEC, 1893. 

Walter Miller. — A History of the Akropolis at Athens. 
Archaeological News. 

CONTENTS OF VOL. IX, No. i, JAN.-MARCH, 1894. 

Allan Marquand. — The Madonnas of Luca della Kobbia. 

Henry W. Haynes. — Some Unwarranted Assumptions in Archaeology. 

A. L. Frothingham, Jr. — Byzantine Artists in Italy from the sixth to the 
fifteenth century. 

R. B. Richardson. — A Torso from Daphne. 

Ch. WaldsteiN. — Preliminary Report on the Excavations at the Argire 
Heraeum in 1893. 

Book Reviews. 

Archaeological News. 



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known in the line of work they here represent. 

Among the subjects presented are Cooperation, Socialism, 
the Laboring Classes, Wages, Capital, Money, Finance, 
Statistics, Prices, the Relation of the State and Municipality 
to Private Industry and various Public Works, the Railway 
Question, Road Legislation, the English Woolen Industry, 
and numerous other topics of a like nature. 

The current Volume (VIII.) contains: 

No. 1. Report of the Proceedings of the Fifth 
Annual Meeting of the American Econo- 
mic Association. Price 75 cents. 

Nos. 2-3. The Housing of the Poor in American 
Cities. Price $1.00. Marcus T. Reynolds, M. A. 

Nos. 4-5. Public Assistance of the Poor in 
France. Price $1.00. Emily Greene Balch, A. , 

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Hill, A. M. 

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STUDIES in HISTORUMMICSANO PUBLIC LAW, 



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THE UNIVERSITY FACULTY OF POLITICAL SCIENCE 
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